Decision #56/06 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on March 16, 2006, at the request of a representative, acting on behalf of the worker. The panel discussed this appeal following the hearing on March 16, 2006.

Issue

October 16, 1995 claim

Whether or not the diagnosis of carpal tunnel syndrome should be accepted as a temporary aggravation of a pre-existing condition; and

July 29, 2004 claim

Whether or not the carpal tunnel syndrome is acceptable on this claim as a temporary aggravation of a pre-existing condition, which is now resolved.

Decision

October 16, 1995 claim

That the diagnosis of carpal tunnel syndrome was properly adjudicated as a temporary aggravation of a pre-existing condition; and

That no ongoing responsibility should be accepted for the worker's carpal tunnel syndrome in relation to the October 16, 1995 accident; and

July 29, 2004 claim

That the diagnosis of carpal tunnel syndrome was properly adjudicated as a temporary aggravation of a pre-existing condition, which is now resolved.

Decision: Unanimous

Background

October 16, 1995 claim

On November 28, 1995, the worker filed a claim with the Workers Compensation Board (WCB) for a repetitive strain injury to her right wrist. The worker attributed her right wrist difficulties to a job change which required her to use a computer for 8 hours per day at the wrong height and position.

On December 27, 1995, a WCB medical advisor reviewed the file and advised primary adjudication that the likely diagnosis was a repetitive strain injury which was consistent with the worker's work duties.

The worker underwent nerve conduction studies (NCS) on January 9, 1996. The worker's history given to the neurologist was "intermittent numbness right hand at work keyboarding, for several months, with wrist pain. Exam shows good strength, sensation, no tinels." The NCS results showed that the worker had mild right carpal tunnel syndrome (CTS).

The claim was accepted by the WCB. No time loss was incurred by the worker.

July 29, 2004 claim

A Doctor's First Report dated June 29, 2004, indicated that the worker was examined on this date for increasing symptoms in her right wrist from keyboarding on a computer. With regard to any pre-existing conditions that may affect recovery, the physician referred to the worker's 1995 claim. On July 22, 2004, the physician advised the employer's representative that the diagnosis was "RSI (repetitive strain injury) & ? CTS (questionable carpal tunnel syndrome)".

The Employer's Accident Report dated July 21, 2004 indicated an accident date of June 29, 2004. The accident details were described as follows:
"for the past 5 weeks experiencing numbness, tingling, throbbing and decreased strength in right hand, swelling right hand last 3 wks, had requested new keyboard 5 wks. ago, says has yet to receive same. Has been using right wrist with force to hold tray in place."
On July 9, 2004, a WCB staff representative obtained the following information from the worker:
  • the worker claimed that she still had CTS from her 1995 claim. She stated that she was prescribed a splint because of hand numbness and she did some physiotherapy.
  • she had been asking for a new keyboard from her employer to no avail for about five weeks.
  • she has never been symptom free and felt her condition was "liveable". She would shake or stretch her hand out to relieve the symptoms.
  • her current symptoms began around the end of May. The worker provided the names of two co-workers as witnesses.
  • she wore a splint at night.
  • the worker thought there was something wrong with the work stations and noted that nothing had been done to assess the work stations since 1995.
  • she did not seek medical treatment for her hand over the years.
On July 22, 2004, a WCB adjudicator spoke with the worker's supervisor. The supervisor stated:
  • for the past nine years, the worker has worked as a patient registration clerk. The worker reported that her wrist was sore again because of excessive typing and the broken keyboard. It took more than a month to replace the keyboard.
  • a co-worker had surgery for CTS;
  • the worker has not missed any time from work.
  • the worker uses a computer at home.
  • between 100 to 200 patients are registered daily. This was split between the department. The supervisor stated that it was a busy department and there was a lot of repetitive activity involved with registering patients and booking appointments.
On July 23, 2004, the adjudicator advised the worker that her claim was being accepted as a repetitive strain injury for her right wrist only.

In an e-mail message to the WCB adjudicator dated September 23, 2004, the employer's representative noted that recent nerve conduction studies (NCS) revealed "bilateral median moneuropathy (sic) at or distal to the wrists (e.g. CTS), which appears to be mild on the left and mild-moderate on the right side." Given this evidence, the representative asked the WCB to determine whether a cause and effect relationship existed between the worker's bilateral CTS condition and her work activities.

On November 26, 2004, the worker provided the WCB with further details regarding her work history with the employer, the nature of her job duties, prior problems, the onset of her symptoms, etc. The worker stated:
  • the frequency of her work activities are very constant;
  • her job duties are not usually forceful except for the time when she worked with a broken keyboard for 5 to 6 weeks last summer and had to use force to keep the keyboard from moving;
  • her wrists are extended, she used a gel pad and her wrists were level with the keyboard;
  • her wrists are at a fixed posture the whole day except for lunch and rest periods;
  • a co-worker has been off work for 3 years with wrist problems and a few other co-workers have had wrist problems but have not submitted any claims.
In a WCB decision dated December 2, 2004, it was determined that the work activities performed by the worker did not cause her bilateral CTS condition. The decision stated that CTS can develop from both work and non-work related factors. The accepted work related factors included jobs requiring high repetitive forceful activity involving wrist motions and repetitive wrist flexion/extension. The worker stated that her job did not involve forceful activities but did involve repetitive computer work. Her wrists were not in a prolonged fixed posture nor were her wrists in an awkward position while performing her work duties.

On January 14, 2005, a representative acting on the worker's behalf, appealed the WCB's decision of December 2, 2004. The representative outlined his view that the worker's bilateral CTS condition was caused by her work activities and made reference to the information contained in the adjudicator's memo of November 26, 2004 in support of his position.

In a memo dated February 10, 2005, a WCB medical advisor indicated that the most likely diagnosis was right CTS and that the worker had mild left CTS as was noted on NCS results. She stated that the treating physician also diagnosed a repetitive strain injury and that he documented swelling at the right hand which did not normally occur with isolated CTS. The medical advisor felt that this may represent a tendonitis.

In a submission dated March 10, 2005, the employer's representative outlined his position that the job duties performed by the worker did not result in the development of her bilateral CTS condition or that there had been an accident as defined by The Workers Compensation Act (the Act).

On April 6, 2005, the WCB review officer and a WCB rehabilitation specialist attended the work site to view the worker's workstation.

In response to questions posed by Review Office, a WCB orthopedic consultant expressed the following opinions on April 7, 2005:
  • that the worker had established bilateral CTS dating back 10 years, the right more than the left, with noted manageable symptoms;
  • the worker's CTS was present before the broken tray incident;
  • there may be a temporary aggravation of pre-existing right CTS due to wrist positioning and pressure which would resolve when the keyboard tray was fixed and normal ergonomics was re-established.
In a decision of April 7, 2005, Review Office determined that the worker's CTS was not acceptable. Review Office noted that the 2004 claim was accepted as a repetitive strain injury of the right wrist, on the basis of tendonitis, which had since resolved. Review Office indicated that if it was accepted that the force applied by the worker to keep her keyboard tray in place did in fact impact on her CTS, any aggravation would be very temporary and would have resolved once the causative factor of the broken tray was removed. Therefore, any ongoing CTS symptoms could not be established as being related to the June 2004 claim. Review Office concluded that subsection 1(1) of the Act had not been satisfied in that a relationship could not be established between the worker's ongoing CTS symptoms and the situation of her keyboard tray breaking.

In correspondence dated June 7, 2005, the worker's representative asked the WCB to provide him with written confirmation that the WCB accepted responsibility for the worker's 1995 claim based on the diagnosis of CTS.

Following discussion with the worker on June 28, 2005, a WCB adjudicator confirmed that the worker's 1995 claim was accepted for right CTS and that the WCB was unable to accept responsibility for any further symptoms arising from this condition. The adjudicator pointed out that the worker advised a WCB adjudicator on March 3, 1996 that her right wrist was feeling very good and she was not experiencing any difficulties. Medical reports confirmed that the worker's symptoms had resolved. The adjudicator noted that the worker did not seek further medical treatment until her accident and claim filed in 2004.

In a submission dated July 19, 2005, the worker's representative requested Review Office to reconsider its decision of April 13, 2005 and that he was appealing the decision made on the worker's 1995 claim to deny responsibility for further symptoms arising from her CTS condition. The representative outlined his position that a relationship existed between the worker's 1995 and 2004 claims. He noted that the 2004 claim should have been accepted as CTS since the symptoms were identical to the worker's 1995 symptoms. He stated that the keyboard incident in June 2004 aggravated and/or exacerbated the worker's existing right CTS.

On August 23, 2005, an employer's representative provided Review Office with his submission to deny the two issues raised by the worker's representative and to confirm that the 1995 claim for CTS was not acceptable. On September 2, 2005, the worker's representative responded to the employer's submission and requested that the Review Office uphold the decision to accept the worker's 1995 claim for right CTS.

In a decision dated September 29, 2005, Review Office made reference to file evidence in support of its position that the worker's pre-existing CTS was not caused by either her 1995 or 2004 workplace injuries and that the worker experienced temporary aggravations of a pre-existing condition. It determined that ongoing responsibility should not be accepted for the worker's CTS. Review Office indicated that while providing clarity, this decision was not altering its previous decision of April 7, 2005.

On a balance of probabilities, Review Office indicated that the worker's 1995 claim appeared to be an aggravation of a pre-existing CTS condition which had now resolved. This aggravation resolved shortly following the October 16, 1995 injury once the offending ergonomic conditions in the workplace were resolved. Review Office indicated that the aggravation caused by the keyboard tray breaking in June 2004 had resolved.

On November 7, 2005, the worker's representative appealed Review Office's decision to the Appeal Commission.

On February 27, 2006, the Appeal Commission received further information from the worker's representative for consideration. It consisted of two reports by the worker's treating physician along with NCS results dated January 18, 2006. On March 7, 2006, the Appeal Commission received medical literature from the employer representative.

Reasons

This appeal involves two claim files and three issues.

With respect to the worker's 1995 claim file, the panel was asked to determine whether the diagnosis of CTS should be accepted as a temporary aggravation of a pre-existing condition. For this question to be answered affirmatively, the panel must find that the worker suffered a pre-existing CTS which was aggravated by the worker's job duties. The panel did find, on a balance of probabilities, that the worker had a temporary aggravation of her CTS in 1995.

The panel was also asked to determine whether ongoing responsibility should be accepted for the worker's CTS in relation to the October 16, 1995 accident. Consistent with its decision on the first issue, the panel finds that ongoing responsibility should not be accepted for the worker's CTS.

With respect to the worker's 2004 claim file, the panel was asked to determine whether the CTS is acceptable on this claim as temporary aggravation of a pre-existing condition, which has now resolved. The panel finds on a balance of probabilities, that the worker's pre-existing CTS was aggravated by the workplace incident in 2004 but that the aggravation had resolved, and that ongoing problems were not related to the workplace incident.

Evidence and Argument at Hearing

The worker attended with a representative who made a submission on the worker's behalf. The worker answered questions posed by her representative and the panel. The employer was represented by a representative who made a submission for the employer.

At the commencement of the hearing there was a discussion regarding whether the issues are framed appropriately. It was agreed that if the parties address each issue and the panel provides an answer for each issue that the parties' concerns will be addressed. It was confirmed that the employer had not appealed the Review Office decisions and that the appeal on the three issues was advanced by the worker.

The worker's representative submitted that the worker's job duties caused the worker's CTS in 1995. The worker's representative disagreed with the Review Office decision that the CTS was a pre-existing condition. He asserted that the worker did not have any problems with her wrist prior to 1995 and that there is no medical evidence to the contrary. The worker's representative also disagreed that the CTS had resolved. In his opinion the CTS continued to be symptomatic and that ongoing responsibility should be accepted for the condition. In essence, the worker's position is that the CTS condition was not temporarily aggravated, but continued to be in play.

With respect to the 2004 injury, the worker's representative disagreed with the Review Office decision. He submitted that the pre-existing condition that was aggravated by the worker's job activities is her work related CTS. He stated that this condition has not resolved.

The worker's representative noted that the opinion of the worker's physician outlined in correspondence dated February 24, 2006, supports the worker's position.

The worker described her job duties. She works in a medical clinic setting, She explained that on an average day she would deal with between 75 and 90 patients. She described her interactions with the patient and the use of a computer to record pertinent information. She also uses a computer to record physicians' appointments. In addition she answers between 60 and 75 phone calls each day.

Regarding symptoms, the worker advised that she usually has tingling and numbness every day. She advised that on some days her hands throb more than others. When asked why her hands throb more some days she responded "Maybe I've done more work than that…"

The worker was asked if there was anything that she was doing at work that would specifically aggravate her hands. She responded that "Sometimes we were doing more typing, more than other days, trying to do more things…."

The worker also testified that she has not missed any time from work due to her wrist condition. She advised that after 1995 her wrist continued to bother her and that she continued to use a splint at night as required. It was acknowledged that the worker did not seek medical treatment for the condition between 1996 and 2004. The worker explained that she was aware of the diagnosis and managed her activities.

The employer representative noted that in 1995 the worker's claim was accepted as a right wrist strain, later diagnosed by the worker's physician as right CTS caused by keyboard use. The employer's position is there is no relationship between computer use and CTS. The employer representative described the CTS as non-compensable. She referred to work and non-work risk factors for CTS. In her opinion, the worker's job did not involve work-related risk factors. She identified non-work related risk factors which she considered are applicable to the worker. The employer's representative also referred to research studies in support of the employer's position that the worker's job duties did not cause her CTS in 1995 or 2004.

Analysis

1995 Claim Issues

This case involves a worker who was diagnosed with bilateral 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 worker's representative has suggested that the worker's CTS was caused by her job duties and an improper workstation. The employer disagrees and says the 1995 injury was a right wrist strain and that the CTS was non-compensable. The WCB's Review Office found that the 1995 claim caused an aggravation of the worker's pre-existing CTS and that the work-related aggravation had resolved.

The panel has considered all the evidence and the arguments made at the hearing and finds, on a balance of probabilities, that the 1995 claim caused an aggravation of the worker's non-compensable CTS. The panel further finds that the aggravation resolved, leaving the worker with mild symptoms from her non-compensable CTS.

The panel acknowledges that at the time the injury was reported in October 1995, the worker's CTS was not diagnosed. This diagnosis was not made until a January 9, 1996 EMG/NCS was performed. The test was only performed on the worker's right wrist and found the worker suffered from mild right CTS.

The panel has considered the worker's job duties and the 1995 accident. Her duties commencing June 5, 1995 included obtaining patient information, registering patients on the computer, directing and controlling patient movement, requesting charts, scheduling appointments, answering phones, dealing with incoming mail, and typing correspondence. The panel is unable to conclude that the worker's job duties caused her CTS, as the duties did not involve the type of forceful gripping and wrist movements which are causative of CTS. The panel also finds the job duties to be varied, with many phone calls and contact with patients. However, the panel finds that the worker's underlying CTS was aggravated by using an ergonomically incorrect workstation, with the keyboard at the wrong height and position.

The panel also finds that the 1995 aggravation was temporary. On March 5, 1996 the WCB adjudicator contacted the worker who advised that her wrist was feeling very good and that she was not experiencing any difficulties at work. She advised that her desk had been modified. The worker advised that she was wearing a night splint. On May 6, 1996 the treating physician reported that subjective complaints of numbness and tingling had decreased and reported nil objective findings. The panel therefore finds that the aggravation caused by the 1995 accident had resolved.

The panel acknowledges that the worker continued to use the splint at night due to CTS symptoms, but notes that these symptoms were mild and that the worker did not seek medical attention for her CTS from early 1996 until 2004. The panel finds that the worker's non-compensable CTS remained mildly symptomatic. The panel also notes that subsequently the worker's condition was diagnosed as bilateral CTS.

2004 Claim Issue

The worker's representative argued that the 2004 injury was an aggravation of the worker's 1995 injury, which had not resolved. The employer's representative argued any temporary aggravation would have resolved when the keyboard was repaired. The Review Office found that the 2004 injury was a temporary aggravation of the worker's pre-existing CTS and that the aggravation had resolved.

The panel has considered all the evidence and the arguments and finds, on a balance of probabilities, that the 2004 injury was a temporary aggravation of the worker's CTS and that the aggravation has resolved.

In considering this claim, the panel again considered the relationship between the worker's job duties and the injury. The panel finds that the job duties did not cause the worker's CTS for the reasons referred to previously. However, the panel finds that the incident with the broken keyboard tray caused a temporary aggravation of the worker's non-work related CTS and that the aggravation has resolved.

In arriving at this determination the panel attaches significant weight to the opinion of the WCB orthopaedic consultant who reviewed the file and provided comments on April 7, 2005. When asked if the June 2004 event would have aggravated or enhanced any pre-existing condition, the consultant replied: "There may have been temporary aggravation of pre-existing RT. CTS due to the wrist positioning & pressure which would resolve when keyboard tray was fixed & normal ergonomics reestablished."

The worker's representative placed significant weight on the report of an occupational health and safety specialist dated February 24, 2006. The specialist commented that "In the past and I continue to offer the opinion that the symptom complex, subjective findings and assessment of bilateral carpal tunnel syndrome right greater than left is directly attributable to the workplace."

The panel notes that this physician has attributed the bilateral CTS to the worker's job duties. The panel has carefully considered the worker's duties as noted earlier, and finds that the job duties do not involve the forceful gripping and wrist movements which are considered causative of CTS. Based on its assessment, the panel is unable to attribute the worker's bilateral CTS to the duties. The panel prefers the opinion of the WCB orthopaedic consultant noted above.

The panel also notes that the worker underwent further tests on January 18, 2006. In reporting on the nerve conduction study, the neurologist comments "Median motor nerve conductions are normal bilaterally but there is mild slowing in median sensory conductions across the wrists consistent with bilateral CTS, a bit better than the test of September 2004."

The panel notes that the worker has continued to work since the 2004 injury and finds that the reported improvement is not consistent with the worker's job duties being the cause the worker's CTS symptoms. With the continuation of work, the panel would have expected a worsening of the condition.

The worker's appeals are denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 2nd day of May, 2006

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