The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 22, 2006, at the request of the employer and the worker. The panel discussed both appeals on the same day following the hearing.

Issue

Employer's Issue: Whether or not the claim is acceptable.

Worker's Issue: Whether or not the worker is entitled to wage loss benefits from October 14, 2004 to January 3, 2005 and beyond January 6, 2005.

Decision

Employer's Issue: That the claim is not acceptable.

Worker's Issue: Given the panel's decision on the first issue, it is not necessary to address the worker's issue.

Decision: Unanimous

Background

In August 2004, the worker filed a claim with the Workers Compensation Board (WCB) for right wrist and forearm pain that she related to the repetitive nature of her work duties which included the following activities: wrist actions from sorting mail, computer work and unloading freight. On September 29, 2004, the WCB accepted responsibility for the claim based on the diagnosis of tendonitis of the right wrist and forearm. The worker was paid time loss benefits commencing July 14, 2004.

On September 30, 2004, the worker underwent nerve conduction studies. The "Interpretation" of the results stated, "…a right median focal neuropathy at the wrist (Carpal Tunnel Syndrome) that in terms of sensory criteria is of mild degree, and that does not fulfill motor criteria though the median motor distal latency at the right wrist is close to the upper limit of normal. Neither sensory nor motor criteria for Carpal Tunnel Syndrome are fulfilled on the left, and EMG of the APB is bilaterally normal."

In a letter to the WCB dated October 6, 2004, an employer representative opposed the acceptance of the claim based on several factors. Particularly, the employer felt that there was no specific accident arising out of or in the course of the worker's employment. The employer representative noted that the worker's job activities did not consist of awkward postures or forceful exertions of the hands or wrists. It was felt that the claim was more compatible with an underlying medical condition or personal risk factors for CTS (carpal tunnel syndrome).

In October and November 2004, the employer offered the worker modified duties using her left arm only. The worker refused to perform the modified duties as she claimed that the duties could potentially cause her problems with her uninjured arm. Effective October 14, 2004, the WCB ended the worker's wage loss benefits as the worker refused to participate in the return to work plan which it felt to be appropriate. The decision to end wage loss benefits was relayed to the worker in a letter dated December 17, 2004.

In a submission dated January 7, 2005, the worker requested reconsideration of the WCB's decision dated December 17, 2004. The worker felt that her benefits should continue as her condition was the same as it was in July 2004.

In a March 24, 2005 submission to Review Office, an employer representative outlined her position that the worker's job duties were not repetitive in nature and did not cause the worker to develop right mild CTS. It was felt that the worker's CTS condition was more likely due to personal factors rather than work related factors. Further, the employer representative presented argument that the modified duties offered to the worker were appropriate.

On April 1, 2005, the worker was examined by a WCB medical advisor. In response to questions posed by Review Office, the WCB medical advisor offered the following opinions:

• The current diagnosis was right CTS as a result of repetitive strain injury which was consistent with the worker's work description.
• The natural history of median nerve compression is often one of worsening despite non-surgical conservative measures such as splinting and anti-inflammatory medication. Given the worker's current diagnosis and being off work for eight months, the worker's symptoms should have improved.
• The worker should have been able to participate in moderate or alternative duties in late fall or winter of 2004/2005.
• There were no occupational or non-occupational activities reported by the worker to account for her diagnosed problem.
• In spite of not working since approximately July 2004, the original repetitive strain events causing compression of the median nerve may have progressed in spite of her not working.

On April 21, 2005, Review Office denied the employer's appeal and found that the claim was acceptable. Based on its review of the worker's job duties, the opinion expressed by the examining medical advisor and the Government Employees' Compensation Act (the GECA), Review Office determined that that the worker's CTS condition was compensable and that her work duties played a role in the development or progression of her right CTS condition.

With regard to the worker's appeal, Review Office determined that the worker was not entitled to wage loss benefits from October 14, 2004 to January 3, 2005 and from January 7, 2005 and ongoing. Review Office believed that the worker made little effort to mitigate the effects of her compensable injury by failing to participate in a modified duty program. It noted that the earliest medical and physiotherapy reports outlined that the worker was not totally disabled and could work with restrictions.

On May 25, 2005, the employer's representative appealed Review Office's decision to accept the claim and a hearing was requested. On November 27, 2005, the worker appealed Review Office's decision to deny her wage loss benefits. On February 22, 2006, a hearing took place to consider both the employer's and the worker's appeals.

Reasons

Evidence and Argument at Hearing

The employer was represented by a staff person who made a submission on behalf of the employer and called a witness to provide evidence in support of the employer's appeal.

The worker was represented by an advocate who made a presentation on her behalf. The worker answered questions posed by her advocate and the panel.

With regards to the first issue, the employer representative submitted that the worker's condition was not caused by her work. The employer representative reviewed the evidence on the claim file and referred to literature which supported the employer's position.

The employer called as a witness, a physiotherapist with training in the areas of ergonomics, anatomical biomechanics and biostatistics. The witness performed a job site analysis of the worker's duties. She advised that the worker demonstrated the elements of her job and that she recorded this on a video. Copies of the video were provided to the panel and to the worker. The worker advised that she did not view the video.

The witness testified that:

"When I reviewed the job description and used the videotape to go over the tasks, it was my opinion that the tasks never put the right wrist in extreme end range or forceful flexion. There were no tasks that placed direct pressure on the wrists.

And so, as they were described and measured in and of themselves, it was my opinion that they were not the cause of her right carpal tunnel."

In answer to a question, the witness acknowledged that she did not ask the worker when she had participated in the non-occupational activities which were noted as risk factors for CTS. She also acknowledged that the worker was wearing a brace when she demonstrated the job. The witness advised that she had observed the same duties being performed in other facilities by staff who are not wearing braces.

The worker's representative disagreed with the literature filed by the employer. The representative supported the position of Review Office. He objected to the use of risk factors to rule out occupational causes of the worker's condition. The representative disagreed with the opinions expressed by the employer's witness.

The worker described her job duties. She acknowledged that the most difficult aspect of the work was priming the mail and putting it in to the cubbyholes. She demonstrated the motion used in priming.

With respect to non-work activities, the worker advised that she has not participated in crocheting or needlepoint work since 2002. Nor did she do any gardening in the spring of 2004.

Both parties addressed the second issue regarding the worker's entitlement to wage loss benefits from October 14, 2004 to January 3, 2005 and beyond January 6, 2005. Given the panel's decision on the first issue, a summary of the evidence and argument on this issue has not been included in this decision.

Analysis

Employer's Appeal

The worker was diagnosed with right wrist CTS and subsequently diagnosed with left wrist CTS. The panel is aware that this condition may be caused by work related factors and non-work related factors. The condition can also be idiopathic, of unknown origin. As well, CTS which is not initially work related can be aggravated by work factors.

The employer appealed the WCB's decision to accept the worker's claim for her right wrist condition. The stated issue is whether or not the claim is acceptable. For this appeal to be successful, the panel must find there is no causal relationship between the worker's condition and her employment duties. If there is a relationship, the claim is acceptable and the worker is entitled to receive benefits from the WCB. The WCB, at both the primary level and the reconsideration level (Review Office) found that a relationship exists between the worker's wrist condition and her job duties and accepted the worker's claim with the Review Office accepting the claim as CTS. In reviewing this case, the panel has reached a different conclusion. The panel finds, on a balance of probabilities, that a relationship does not exist. Specifically, the panel finds that the worker's duties did not cause or aggravate the worker's right wrist CTS and as such the claim is not acceptable under the GECA and applicable WCB policies.

The panel's responsibility in this case is to determine, on a balance of probabilities, whether the worker's job duties have caused or aggravated the worker's CTS. The panel has carefully considered the worker's job duties as described by the worker at the hearing, as included in the written job description and as demonstrated by the worker on the video recorded by the physiotherapist. The panel has also noted the physiotherapist's analysis and observations of the job duties.

Although the worker's job is repetitive, in performing her duties the worker's wrists and hands are not held in the extreme end range of flexion and extension. The panel also finds there is no direct pressure on the worker's wrists and no sustained maximal gripping force is required. The panel notes that the worker has variety in her duties and that her duties varied on each shift. She works three different shifts with different duties which rotate every three weeks. The duties can include using a computer, unloading parcels, carding parcels, manually writing up parcels, unloading mail, sorting mail, priming mail, preparing mail for dispatch, loading mail and moving containers of mail with a hand jack. After considering the job duties and the postures and motions involved in performing the job duties, the panel finds that the duties were not likely to cause the worker's right CTS.

The panel notes that the worker's CTS is bilateral, affecting both wrists. This is frequently an indication of a non-work related condition. The worker's evidence was that she used her right hand for the majority of her duties prior to the injury. Given this evidence, it is unlikely that work caused the left wrist condition and more likely that the condition in both wrists is not work related.

The panel notes that a WCB medical advisor had opined that the worker's condition was job-related based upon his understanding of the worker's job duties. The panel disagrees with the assessment of the job duties and therefore does not rely upon this opinion. The panel also notes that the advisor's examination notes do not identify the bilateral nature of the worker's CTS, which suggests it was not known by the examiner at the time of the examination.

The panel finds that the worker's job duties have not caused nor aggravated her CTS and that the claim is not acceptable.

The employer's appeal is therefore allowed.

Worker's Appeal

The worker appealed the WCB decision that the worker is not entitled to wage loss benefits from October 14, 2004 to January 3, 2005 and beyond January 6, 2005. Given the panel's determination on the first issue, it is not necessary to address the second issue.

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 18th day of April, 2006