The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 30, 2004, at the request of the worker's representative. The Panel discussed this appeal on November 30, 2004 and again on March 4, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On November 19, 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to file a claim for right sided carpal tunnel syndrome (CTS) which she related to her work activities as a data entry operator. The date of accident was recorded as being April 1, 2002.

The worker advised the call centre that she had been a data entry operator for the past 18 years. She keyed about 30,000 to 40,000 records per day and she used both hands. In August 1999, she complained to her doctor about her right wrist and elbow being sore. In February 2002 she felt tingling, shooting pains, numbness and increased pain in both wrists and hands. In July 2002, the worker said her doctor advised her to go on alternate or light duties and not to use a computer. The worker performed alternate duties for many months which included clerical work in the mornings and keyboarding in the afternoons. She stated that she had less pain in the mornings.

On January 19, 2004, the worker advised a WCB adjudicator that she was right hand dominant. The worker used her right hand to enter the numeric portion of the information and her left hand to enter the alpha portion of the information and to flip the cards from which she recorded the information. The worker stated that her hands were tilted slightly upwards as she operated the computer. She said that an ergonomic assessment was done of her desk on October 23, 2003. The worker reported that she did not have any problems with thyroid, diabetes or high blood pressure. The worker was 5'3 ½" and weighed 138-140 lbs. She was a non-smoker.

Medical information consisted of reports from a general practitioner and from a surgeon which diagnosed the worker with bilateral CTS. On April 15, 2002, nerve conduction studies revealed mild right CTS and no CTS on the left side.

On February 3, 2004, Rehabilitation & Compensation Services determined that the claim for compensation was not acceptable. It was acknowledged that although keyboarding in itself was repetitious, there was no evidence to support that the worker's job duties included high force repetitive activity involving motions of the wrist or repetitive flexion/extension of the wrist which would expose her to significant work related factors resulting in the development of CTS. On February 26, 2004, the worker's representative appealed this decision and the case was forwarded to Review Office for consideration. Included with the submission was additional medical information from the worker's attending surgeon and correspondence by the accident employer.

On March 26, 2004, the Review Office concluded that on a balance of probabilities, the worker's job duties would not have resulted in the development of bilateral or unilateral CTS. Review Office made reference to medical literature with respect to keyboarding and CTS. It stated that repetitive key entry of between 50,000 and 200,000 keystrokes per day may cause irritation to the membrane surrounding the extensor tendons or the tendons themselves. The literature also noted that CTS can arise from other known factors and that perhaps 50% of diagnosed CTS cases can be idiopathic in origin. Review Office noted that the worker's job duties may be repetitive in nature, but they fell far below the threshold of keystrokes suggested in the medical literature and that her job did not expose her wrist or hand to excessive forces or any direct pressures or gripping. On October 26, 2004, the worker's representative disagreed with Review Office's decision and an oral hearing was arranged.

Following the oral hearing held on November 30, 2004, the Appeal Panel met to discuss the case and decided to request additional information from the accident employer and two of the worker's treating physicians. On February 7, 2005, all interested parties were provided with copies of the information that the Panel received and were asked to provide comment. The worker's representative provided a further submission on behalf of the worker.

Reasons

We were asked to determine whether the worker's claim is acceptable. For the appeal to be successful we must find that the worker's right sided CTS was caused, aggravated or enhanced by her employment. We did find that the worker's employment enhanced her pre-existing right sided CTS and that her claim is acceptable.

The Hearing

The worker attended the hearing with a representative and two observers. The worker answered questions posed by the Panel. The employer did not participate in the hearing.

The worker's representative submitted that the medical evidence supports the acceptance of the claim for right sided CTS for which surgery was ultimately required. He asked that the worker be provided wage loss benefits back to the date she first missed work.

The worker provided a detailed description of her employment duties which involve the entry of data into a computer system. The worker's evidence was that there was very little variety in her work. She spent most of her working day entering data. She estimated that before her injury she entered 45,000 records per day. The worker stated that she is right hand dominant and that 90% of the data is entered using her right hand on the numeric portion of the keyboard.

The worker advised that she first noted symptoms in her right wrist and hand in 1999. She described the onset of symptoms, her attempts to continue working, and the modified duties that were provided at various times. She noted that she has used her sick leave and vacation entitlement for time she missed for her CTS problems and has not received any disability or other benefits.

Analysis

We note that the worker's physicians have diagnosed her condition as bilateral CTS. We also note that nerve conduction studies have only confirmed right sided CTS. Having considered all the evidence, we have found, on a balance of probabilities, that the worker's right sided CTS was not caused by her employment. However, we have also found that the worker's job duties have enhanced her right sided CTS to the point that surgery was required. Accordingly we found that the worker's claim for right sided CTS is acceptable in accordance with WCB Policy 44.10.20.10, Pre-existing Conditions. This policy provides:

1. WAGE LOSS ELIGIBILITY

(a) Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker's Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Evidence concerning the progression of a pre-existing condition based on statistical norms, (such as those contained in standardized disability guides), or predictions based on the best available data, may be considered as evidence. However, where it is determined that the worker's inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

We note that the worker's job involves significant data entry activity with large volumes of keystrokes from entering 45,000 records per day. We accept the worker's evidence that 90% of the keystroke activity is performed by the worker's right hand. We also accept the evidence that there is little variety in the worker's duties. The job description for this position notes that the worker spends 95% of her time working on the data entry system. While this may not be sufficient activity to cause the worker's right sided CTS, we find it was sufficient to aggravate and ultimately enhance the worker's pre-existing right sided CTS condition to the point that the worker required surgery in March 2004. This is 4 years after the symptoms first began in 1999.

We note the worker's evidence that while away from work, or performing alternate duties her condition was less symptomatic. This is also confirmed in the medical reports provided by the treating physician. We find this to be consistent with our finding that the worker's duties initially aggravated her pre-existing condition. However, as she continued to perform her duties, her condition was adversely affected or enhanced to the point that surgery was required.

The worker's appeal is granted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of March, 2005