The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 22, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on February 22, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In March 2003, the worker filed a claim with the Workers Compensation Board (WCB) for progressive soreness in both wrists, which occurred over a one year period, that she related to her driving activities, which included steering, opening/closing doors with her hands and shifting gears. The soreness in her wrist went from the thumb area into her arm and she noticed that her hands were tingling when she awoke from sleep. She stated that she was scheduled to undergo nerve tests and that she had to get braces for both wrists. The worker indicated that she had been driving for approximately 25 years, some of which was not with her current employer.

The Employer's Report of Injury dated March 13, 2003, stated that the worker claimed her driving a vehicle for the past 25 years had caused carpal tunnel syndrome (CTS) in both wrists.

On March 21, 2003, the attending physician diagnosed the worker with right shoulder bursitis, right lateral epicondylitis, neck myofascial pain and bilateral CTS.

In a letter dated March 21, 2003, the employer's representative outlined his opinion that the "forearm activity" associated with the operation of the vehicle would not be conducive to the development of the worker's CTS condition.

Nerve conduction studies dated May 14, 2003 revealed normal median nerve studies bilaterally. The worker was also assessed by a WCB medical advisor on July 16, 2003.

In a decision dated July 31, 2003, primary adjudication determined that the claim for compensation was not acceptable as it was unable to establish that the worker had been exposed to significant work related factors for the development of her CTS condition. On November 10, 2003, the worker's union representative appealed this decision to the Review Office.

EMG studies were performed on March 26, 2004. The results revealed no electrophysiologic evidence of CTS in either arm.

On May 26, 2004, the treating physician advised the WCB that the diagnosis of bilateral CTS was based on clinical findings, although not supported by nerve conduction study results. She further stated "As we are aware a normal nerve conduction study does not preclude Carpal Tunnel Syndrome. It is believed to be a work related injury…".

In a Doctor's First Report dated June 25, 2004, the treating surgeon diagnosed the worker with bilateral CTS. He stated that nerve conduction studies revealed no CTS in either hand. He requested WCB approval for right carpal tunnel release.

On May 13, 2004, Review Office sought the medical advice of a WCB orthopaedic consultant with regard to a diagnosis for the worker's condition and its relationship to her job activities. In a response dated June 1, 2004, the consultant stated that there was no definitive diagnosis. He stated that although one may have normal nerve conduction studies with CTS, in well established CTS cases the electrical studies should be positive. He stated that the worker had multiple proximal limb symptoms as well as symptoms in her fifth fingers. These were not consistent with CTS. He stated that negative electrical testing indicated no significant injury had occurred to either median nerve within the carpal tunnels.

On July 13, 2004, Review Office considered all the file information including submissions by the employer's representative dated January 2, 2004 and April 8, 2004 and a further submission by the union representative dated February 9, 2004. Review Office confirmed the WCB's previous decision that the claim was not acceptable. Review Office noted that the worker's symptoms were not evident until approximately March 2002 and by this time she had been employed as a driver for five years. Review Office did not believe a definitive diagnosis had been established in view of the numerous diagnoses on file, two normal conduction studies and the worker's multiple proximal limb symptoms in her fifth fingers. Review Office concluded that the weight of evidence did not establish a condition that could be related to the worker's employment. On November 4, 2004, the union representative disagreed with Review Office's decision and an oral hearing was 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 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."

As the background notes indicate, the worker attended her treating physician on March 21, 2003 and presented with multiple complaints, which were diagnosed as right shoulder bursitis, right elbow lateral epicondylitis, neck myofascial pain and bilateral carpal tunnel syndrome (CTS). The WCB determined that further investigation was required in order to establish a cause and effect relationship between the worker's duties and the onset of her diagnoses. The worker was called in for an examination by a WCB medical advisor on July 16, 2003.

In arriving at our ultimate decision, we attached considerable weight to the clinical findings and opinion of the medical advisor. The following is a compelling extract from his examination notes:

“Today’s clinical examination would also find supportive evidence of carpal tunnel features involving both median nerve distributions. However no findings to support diagnosis of shoulder bursitis, lateral epicondylitis, or myofascial neck pain on clinical examination.

To satisfy diagnostic criteria for carpal tunnel requires the use of wrists in altered or flexed positions against repeated force which is not satisfied by her occupation…”

Also of significance were the normal findings of a nerve conduction study carried out on March 26, 2004. “There is no electrophysiologic evidence of a carpal tunnel syndrome in either arm.” Interestingly enough these results are consistent with a previous nerve conduction study performed on May 14, 2003.

It should be noted as well that the worker had indicated her wrist condition did not improve during her extended lay off from driving and in fact the condition worsened. We would conclude that the worsening of her condition when removed from the workplace would not support a causal connection to her employment.

We find the weight of evidence does not satisfy the standard of proof that the worker’s carpal tunnel syndrome/wrist condition is, on a balance of probabilities, causally related to her work duties. There being no accident as defined by the Act, the claim is therefore not acceptable. Accordingly, the worker’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, 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 April, 2005