Decision #175/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 5, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On September 29, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a right wrist injury that she related to her work activities as a general merchandize clerk. The date of injury was April 20, 1999 and it was reported to the employer on August 1, 2004. The worker described her work duties as follows:
"I started employment 1991/1992, September 28, and I worked as a cashier and doing stock up until approximately January 2004. I switched departments. Repetitive case cutting, using an exacto knife, cutting case lids on all four sides off. I use my right hand to cut, moving top to bottom, towards me, turn the case counter clockwise, and then, cut, until all four sides are done. I do stock all day, on an average of 5 hours per shift. I cut a case open, I put it on the shelf, and I take the edging off (cutting downwards on each side, and then across the bottom). Number of cases vary by the order, and by sizes."
The worker stated that she first noticed symptoms at work. She did not seek immediate medical attention as she was able to cope and did not feel the need. The worker is right hand dominant.

The employer did not fill out an Employer's Accident Report as "the employee was asked about this injury and she stated that she doesn't remember. We have no medical notes on file for this injury."

On October 18, 2004, a WCB adjudicator contacted the worker to obtain additional information regarding work history, the onset of symptoms, reporting of the accident and medical history.

Medical information revealed that the worker had been seen by a neurologist on April 20, 1999 with complaints of "…intermittent pain in the right wrist pain (sic) which extends proximally to the elbow for the past 3 years…throbbing or numbness in the hand especially at night. Occasionally digits 3 and 4 'turn white'…no history of diabetes…mild similar symptoms on the left." In summary, the specialist noted there was electrophysiological evidence of mild impairment of the median conduction across the wrist, suggesting that carpal tunnel syndrome (CTS) may contribute to some of her symptoms. Further clinical correlation was suggested.

In a report dated November 8, 2004, an orthopaedic surgeon indicated that the worker was scheduled for decompression surgery of the right median nerve on November 29, 2004. He commented that the worker "may well have sustained the right carpal tunnel syndrome as a result of the heavy activities she did for 13 years at…".

In a decision dated November 29, 2004, the worker was advised that the WCB was denying responsibility for her claim as it was unable to identify an exposure to significant work related risk factors in her employment which would contribute to the development of her CTS condition. On January 21, 2005, the worker's union representative appealed the WCB's decision of November 29, 2004 to Review Office.

On February 17, 2005, Review Office confirmed that the claim was not acceptable. After weighing all of the evidence, Review Office concluded that the development of the worker's right CTS was not related to the performance of her job duties and therefore her condition did not arise out of and in the course of her employment. On April 6, 2005, the union representative appealed Review Office's decision and an oral hearing was then arranged.

Reasons

Subsection 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."
In keeping with this subsection, the Panel must, initially, be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes
  1. A wilful and intentional act that is not the act of the worker,
  2. any
    1. event arising out of, and in the course of, employment, or
    2. thing that is done and the doing of which arises out of, and in the course of, employment, and
  3. an occupational disease
and as a result of which a worker is injured."

As the background notes indicate, the worker indicated that her right wrist symptoms and difficulties became more evident in 1999 while performing her job duties at work. An EMG conducted on April 20, 1999 verified that there was "electrophysiological evidence of mild impairment of median conduction across the [right] wrist, suggesting carpal tunnel syndrome may contribute to some of her symptoms". The worker, however, did not inform her employer of her right wrist problems until August 1, 2004 and did not file a claim with the WCB until September 29, 2004.

According to the medical literature written on the subject of carpal tunnel syndrome, it can develop from work related as well as from non-work related risk factors. Work related risk factors can include jobs which require high force repetitive activity involving movements of the wrist such as twisting, gripping, pulling, pinch pressure and wrist flexion/extension. Conversely, non-work related risk factors can include such things as pregnancy, diabetes, menopause, hypothyroidism, arthritis, skeletal injury to the wrist, age, gender, smoking, obesity and idiopathic etiology.

Although the worker is right hand dominant, the evidence nevertheless indicates that the worker's hand/wrist difficulties are bilateral in nature. Close examination and scrutiny of the worker's job duties reveal that these duties are by and large varied and are not continuous in nature. We find that the worker's job duties as described are not, on a balance of probabilities, of high force and repetition which would lead to the development of carpal tunnel syndrome.

Inasmuch as there has been no accident as defined by the Act resulting in injury, we find that the claim is therefore not acceptable. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of November, 2005

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