The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 11, 2006, 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 22, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for difficulties that she was experiencing with both hands that she related to her employment activities as a file maintenance clerk. The worker advised the WCB that the first time she saw a physician was in April 2003 and was told that she required surgery. The worker commented that she underwent nerve conduction studies in July 2003 and that she was right hand dominant. The employer's report of injury described the worker's injury as "progressive injury due to repetitive stapling".

On September 22, 2004 and November 18, 2004, two different WCB adjudicators contacted the worker to obtain additional information about her work history with the employer, details regarding the onset of her symptoms, reporting of the accident, etc. The WCB also received a summary of the physical demands associated with a file maintenance clerk.

Medical information was received from the worker's family physician dated September 29, 2004. The physician reported that the worker was examined on January 24, 2003 with complaints of a one year history of numbness of her right hand and that subsequent nerve conduction studies confirmed a diagnosis of right carpal tunnel syndrome (CTS). The physician noted that in May 2003, the worker then began to notice a slight numbness in her left hand and was prescribed custom night splints for both wrists. On August 12, 2004, the worker was placed on a waiting list for right carpal tunnel release.

On November 18, 2004, a WCB adjudicator denied the worker's claim for compensation as it was determined that the job duties as a file maintenance clerk were not causal for the development of her right CTS condition.

On January 12, 2005, a union representative asked the WCB to reconsider its decision to deny the claim as it was felt that the WCB did not properly investigate or consider the specifics of the worker's actual job duties. The representative outlined her position that "We note there has been no medical investigation done regarding any non-occupational risk factors and whether those risk factors have contributed to the development of the CTS."

In a memo dated January 27, 2005, the WCB adjudicator documented that she reviewed the file and the union representative's submission. She stated "Short Term Claims is of the opinion there is enough information on file regarding the physical demands of Ms. [the worker's] work. We are comfortable with the information provided by the worker. Short Term Claims is unable to establish a relationship between the worker's job duties and CTS. As such, the claim was not accepted."

On February 21, 2005, the union submitted a letter to the WCB from the worker dated February 12, 2005. The worker stated that she had been working in an ergonomically unfriendly environment for several years during her work as a file clerk. She cited examples of the equipment which she had been using.

In a letter to the union representative dated March 1, 2005, the director of short term claims outlined his view that the adjudicator's decision to deny the claim did not appear to be unreasonable. He stated, in part, "In situations where the WCB determines that the work activities are not sufficient to have caused the diagnosed condition it generally will not continue to investigate the potential non occupational causes for the condition."

On March 31, 2005, the union representative provided Review Office with an appeal submission outlining its position that the worker's CTS condition was work related.

In a May 26, 2005 decision, Review Office confirmed that the claim was not acceptable. Review Office stated, "…although the worker's job requires some repetition of duties, there is no highly forceful or highly constant repetition of duties on a daily basis. The worker's duties are variable and as stated by her Union Representative; her wrists are in a variety of positions, allowing her the opportunity to vary the physical demands on her wrists. Review Office finds that a personal injury by accident arising out of and in the course of the worker's employment has not been established and, therefore, the claim is not acceptable." On June 15, 2005, the union representative appealed Review Office's decision and an oral hearing took place on January 11, 2006.

Reasons

The issue before the panel is whether the worker's claim is acceptable. For the appeal to succeed, the panel must find a causal relationship between the worker's injury and her job duties. In this case the worker has been diagnosed with bilateral CTS. The panel must find that the worker's job duties contained elements that can cause bilateral CTS. The panel found that the job duties were varied and did not contain elements sufficient to cause CTS. Accordingly the panel concluded that the worker's claim is not acceptable.

Evidence and Argument at Hearing

The worker attended the hearing with a union representative who made a presentation on her behalf. The worker answered questions posed by the panel.

The employer was represented by an advocate and a staff person. The advocate made a presentation on behalf of the employer.

The worker's representative referred to an article on epidemiological studies on the cause of CTS in support of the position that the worker's condition is caused by work. She suggested that putting a number of the risk factors together will have a synergistic effect on the person and increase their risk of developing CTS.

Regarding the worker's claim, the worker's representative noted that her left wrist symptoms developed later than her right wrist symptoms. She suggested that the worker's left wrist symptoms are caused by the worker compensating for the right hand by using her left hand. The worker's representative referred to the workstations which she considered put the worker at greater risk. She also expressed the view that the WCB did not give proper consideration to various aspects of the job, such as, ticketing and stapling duties.

In response to questions from the Panel, the worker provided a detailed description of her duties which include:

• keyboarding to print tickets (no data entry) (approx. 1/2 hour per day),
• loading printer
• ripping tickets apart (perforated paper)
• hanging tickets (remove and replace tickets) (approx 200 per hour, 500 per day)
• running and sorting computer mail
• printing and changing signage
• sending stock orders
• dealing with mark-downs and damaged products

Regarding the stapling duties, the worker advised that this has not been a major duty since 1994. The employer's staff representative agreed with the worker's description.

The employer advocate submitted that the worker's duties do not require highly repetitive or extremely forceful movements of the wrist and noted that the worker did not advise her employer of her condition until 15 months after it was diagnosed. The advocate concluded that the worker's job duties are not consistent with the occupational risk factors normally associated with the development of CTS.

Analysis

This is a worker's appeal of a decision to deny responsibility for bilateral CTS.

Subsections 1(1) and 4(1) of The Workers Compensation Act (the Act) set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an accident that arose out of and in the course of his or her employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

In order for this worker's claim to be acceptable, the panel would have to find that the worker's CTS condition is causally related to her employment. The panel carefully reviewed the evidence available in the file and presented at the hearing, and has concluded, on a balance of probabilities, that the worker's job duties would not have resulted in the development of her bilateral CTS condition.

In reaching this conclusion, the panel placed particular weight on the description of the job duties provided by the worker at the hearing. The panel also considered the physical demands analysis information for the worker's position provided by the employer. The panel finds that the job duties are varied and do not include elements sufficient to cause CTS. While the panel did find that ticketing was somewhat repetitive, it did not find that the duties involve forceful pinching or gripping, or awkward postures, such as, flexion or extension of the wrists. The duties involve minimal use of a keyboard and mouse. The use of a stapler ceased to be a significant aspect of the duties in 1994.

The panel also notes there is no medical opinion supporting a relationship to employment. The worker's physician did not provide an opinion on the relationship of the condition to the worker's job and commented in a report dated September 29, 2004 that "The mechanism of injury and the role her employment played was not discussed with the patient so I cannot comment on this."

The panel concludes, on a balance of probabilities, that the worker's job duties did not cause her bilateral CTS. The worker's appeal is declined.

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 13th day of February, 2006