Decision #18/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 6, 2004, 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

In January 2004, the worker submitted a claim to the Workers Compensation Board (WCB) for difficulties she experienced with her forearms, wrists and fingers that she related to her daily employment activities which included the following: using the keyboard and mouse for half a day, retrieving books on and off shelves, carrying boxes of books, photocopying and opening and closing snaps of canvas bags for the other half of the day. The worker further noted on her report of injury form that she started to feel tingling in her fingers on both hands but right more so than the left. In June 2003 she started a new position which involved more typing in the same department. With respect to reporting her injury, the worker said she was unsure of the date she reported the accident to her employer or what she had told the employer.

The employer's report of injury form stated that the worker "…claims due to cumulative effect of keyboard and housing (sic), she allegedly has repetitive strain injury to her wrists and fingers." December 23, 2003 was the date the worker reported an injury.

The file contains two Notice of Injury forms (green cards) filed by the worker dated November 6, 2003 and December 23, 2003. The November 6, 2003 report identifies the date of injury as being November 5, 2003. Cause of injury was "repetitive strain related to time spent on computer & unsnapping bags". The December 23, 2003 report identified the injury as carpal tunnel syndrome (CTS) which gradually worsened over the course of six months. The cause of injury was identified as "time spent on keyboarding".

Nerve conduction studies were undertaken on November 6, 2003. Bilateral CTS was confirmed, moderately severe on the left and severe on the right.

On February 11, 2004, a WCB adjudicator called the worker to gather additional information concerning her claim. The worker stated that she was a permanent part-time employee. She first noticed tingling and numbness in both hands sometime in January or February 2003. There was no specific accident or incident at work and there were no significant changes in her job duties or increases to her work load. She did not report anything to her employer as she was uncertain as to what had caused her problems. She did not recall providing a work related history of injury to her doctor. Her symptoms were not improving and she recalled first mentioning her symptoms to her supervisor in November of 2003. The worker noted that she was not involved in any outside activities that would have aggravated or irritated her condition. She stated that she was diagnosed with hyper/hypothyroidism several months ago and was receiving treatment.

The attending physician provided the WCB with a narrative report dated February 18, 2004. In summary, the physician noted that the worker had not been involved in other activities that would aggravate the tendons at the flexor retinaculum of her wrist. He stated the worker's thyroid was imbalanced but it now was in a perfectly normal range and yet her problems persist. The physician commented that the worker's job involved a lot of repetitive hand and wrist movement and that her wrist problems were work related.

In a February 25, 2004 decision, the worker was advised that the WCB was unable to accept responsibility for her claim. Based on a review of all the file information including the worker's job duties, the significant delay in reporting and her pre-existing non-work related risk factors, the WCB was unable to establish a relationship between her current diagnosis and an accident as defined in subsection 1(1) of The Workers Compensation Act (the Act).

On March 12, 2004 a plastic and reconstructive surgeon recommended urgent CTS release. He stated, "I think in view of her occupation and the repetitive nature of her work and continuing difficulty which she is experiencing with work, it would be appropriate to consider her claim and have her proceed to surgery as soon as possible under Workers Compensation benefits."

On April 1, 2004, a union representative appealed the WCB's decision to deny the claim. On a balance of probabilities, the union representative contended that the work the worker performed was the sole contributing cause of her bilateral CTS condition.

Prior to considering the appeal, Review Office asked primary adjudication to review the appeal letter submitted by the union as it alleged a major change in the worker's job duties. On April 20, 2004, the worker was contacted and clarification was obtained with respect to the change in her job duties commencing in June of 2003.

On May 5, 2004, primary adjudication concluded that there was no new information to warrant a change in the initial decision. It felt that the worker's job duties did not involve highly forceful or repetitive movements consistent with the development of bilateral CTS. The file was referred back to Review Office for further consideration.

On August 6, 2004, the employer's representative provided Review Office with a submission which outlined its position to uphold primary adjudication's decision to deny the claim.

On September 12, 2004, Review Office determined that the claim for bilateral CTS was not acceptable. Review Office noted that the worker's duties during the work day entailed a variety of movements and moving around, rather than being constant in one position for several hours at a time. Review Office was unable to confirm that the worker's duties involved high forceful repetitive hand motions, constant positioning, or mechanical stress to the base of the palm. It noted that the worker had an untreated thyroid condition before being diagnosed with bilateral CTS. Review Office considered this to be a significant risk factor for the development of CTS, in addition to the worker's gender, age and weight. In October 2004, the union representative appealed Review Office's decision and an oral hearing was then arranged.

Reasons

Subsection 4(1) of 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 section, 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."

The worker advanced the argument through the advocacy of her union representative that her wrist difficulties worsened in June 2003 after starting a new position, which required more typing. "It wasn't until she [the worker] assumed the new duties that her symptoms got progressively worse to the point where she had to seek medical attention for her condition." The duties that the worker performed for the employer were "the major contributing cause of her bilateral carpal tunnel syndrome".

All aspects of the worker's job components were very carefully questioned at the hearing by the Panel. The worker candidly acknowledged that she was not a fast typist, but rather, employed a hunt and peck style. We found her job duties were highly varied and by and large did not require the use of her left hand. In addition, the job duties performed prior to and after June 2003 were not in our view highly repetitive or of high force which one would typically find in work-related CTS.

According to the medical literature written on CTS, it can develop from work related as well as 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 pregnancy, diabetes, menopause, hypothyroidism, arthritis, skeletal injury to the wrist, age, gender, smoking, obesity and idiopathic etiology.

We note that the worker began to experience bilateral wrist symptoms prior to her job duty changes in 2003 and that she has a thyroid condition. It is also noteworthy that the worker is right hand dominant and yet her wrist condition is bilateral.

After having thoroughly considered all of the evidence, we find that the performance by the worker of her job duties has not, on a balance of probabilities, resulted in her developing bilateral CTS. We further find that there has been no accident as defined by the Act. Therefore the claim is not acceptable and 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 25th day of January, 2005

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