The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 21, 2005, at the employer's request. The Panel discussed this appeal on September 21, 2005 and attended the work site on October 28, 2005. On November 21, 2005, the Panel further met to discuss the case.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable as an aggravation of a pre-existing condition.

Decision: Unanimous

Background

On March 11, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for bilateral wrist problems that she related to the following job activities "…sorting and handling mail and heavy trays -weight about 20 pounds with mail in them. Also lifting parcels - loading the trucks with them - they range anywhere from 3 pounds to 55 pounds." The worker indicated that she has had symptoms while at work for about five years. The worker stated, "It first started as numbness in my right hand and that went on and off for the last couple of years. Then my left one started to bother me about 6 months ago and the same numbness in the hands and it bothered me on and off. The last 5 months have been the worse due to numbness in both hands and wakening (sic) me up at night about 6 times a night and the numbness is in both. The right is worse then (sic) the left. At work it bothers me about 30% of the day. I have more tingling in the right then (sic) in the left. I do not drop thinks (sic) when they go numb or start to tingle."

Nerve conduction studies dated May 5, 2004, revealed that the worker has moderate left and moderately severe right carpal tunnel syndrome (CTS).

The Employer's Accident Report indicated that the worker reported an injury on February 26, 2004. The description of accident was recorded as follows: "Employee states that she has a problem with her hands going to sleep over the past year. In the last few months, it has gotten worse, causing her to wake up several times at night. The more loading of trucks and feeding parcels performed the worse it gets at night."

In a letter dated March 29, 2004, the employer outlined its position that it was difficult to accept that the symptoms experienced by the worker were work-related. The employer commented that the worker "…enjoys a rotation of duties approximately every 2 hours. Specifically, Ms. [the worker] spends her time between keying/coding, loading trucks, 'racking' which involves taking parcels off a belt and putting them on to rack, throwing small packages into monotainers, taking mail out of monotainers and placing it on a belt and operating the lift truck to move full containers of mail for loading onto trucks and bringing empty containers back to the belt." The employer indicated that the variety of duties performed by the worker ensured that she was not exposed to any of the factors commonly thought to produce the symptoms associated with CTS.

In a memo to file dated July 15, 2004, a WCB adjudicator outlined her position that the mechanism of job duties described by the worker was consistent with the diagnosis of CTS and that the claim for compensation was acceptable. Specifically, the adjudicator indicated that the worker's job duties of keying/coding parcels, loading trucks, racking, etc. were consistent with movements that required repetitive activity involving motions of the wrists (i.e. twisting, gripping, pulling) with force and pressures as well as wrist flexions and extensions.

In a decision letter dated July 19, 2004, the adjudicator confirmed that a cause and effect relationship between the development of the worker's bilateral wrist difficulties and an accident arising out of and in the course of her employment had been established. On November 18, 2004, the employer's representative appealed this decision and stated that the development of the worker's bilateral CTS condition was more likely than not the result of non-work related factors.

Following review of the file information along with the above appeal submission, Review Office referred the case back to primary adjudication to obtain additional information.

A WCB case manager attended the work site and met with the worker, her union representative and shop steward as well as the employer to observe the performance of the worker's job duties. A memo along with photographs pertaining to this visit is on file dated December 10, 2004.

On January 18, 2005, the case manager determined that no new information was made available that warranted a change to the original decision to accept the claim. On January 31, 2005, the employer appealed this decision to Review Office.

On February 18, 2005, Review Office confirmed that the claim for compensation was acceptable. Review Office was of the opinion that the worker's job duties were, on a balance of probabilities, sufficiently repetitive and strenuous enough on her hands and wrists to have caused her bilateral CTS condition. Review Office felt there was sufficient evidence to establish that an accident, as defined under the Government Employees Compensation Act (GECA), the Government Employees Compensation Regulations (GECR) and WCB policy 44.05.10 did in fact occur. In March 2005, the employer appealed Review Office's decision and an oral hearing was arranged.

On July 28, 2005 and September 14, 2005, the employer provided the Appeal Panel with further evidence in support of their appeal. On September 14, 2005, the Appeal Panel received further evidence from the worker's union representative for consideration. On September 21, 2005, the oral hearing was convened.

Following the oral hearing, the Panel decided to arrange a work site visit to view the job duties performed by the worker. This job site visit took place on October 28, 2005. On November 21, 2005, the Panel further met to discuss the case and to render its final decision.

Reasons

This is an employer appeal of a WCB decision to accept the worker's claim for bilateral CTS. The stated issue is whether or not the claim is acceptable. For the appeal to be successful, the Panel must find there is not a causal relationship between the worker's condition and her employment duties. The Panel did find, on a balance of probabilities, that a relationship exists. Specifically, the Panel finds that the worker's duties commencing in October 2001 in the parcel area aggravated her pre-existing bilateral CTS, and as such the claim is acceptable under the GECA and applicable WCB policies.

Evidence and Argument at Hearing

The employer was represented by its WCB specialist. The employer's representative made a submission on behalf of the employer and called a witness in support of its submission.

The worker attended the hearing and was represented by two union representatives. The worker answered questions posed by the parties and the Panel. A union representative made a submission on behalf of the worker.

As noted in the background, the Panel later attended at the work site to view the job duties performed by the worker.

The employer's representative submitted that the worker's condition was not caused by her work in the parcel area. The employer representative also submitted that the WCB had misapplied WCB Policy 44.05.10. The employer's 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 was called to support the employer's position that the equipment used at the workplace and, specifically in the parcel area requires minor forces to operate. The witness then answered questions posed by the parties and the Panel.

The employer's witness described her methodology, using standardized objective measurements to measure the forces required to perform the tasks. She provided the opinion that "…the upper extremities of the employees were not exposed to excessive forces or gripping that would put maximum strain or excessive strain on the upper extremity joints, and there was no indication of any requirement for direct pressure on the wrist, shoulder or elbow."

With respect to her assessment, the witness acknowledged that she spent approximately 45 minutes in the work area. She also acknowledged that the worksite was not busy when she was there. She assessed seven job functions but observed workers performing only two job functions. The other job functions were demonstrated by the supervisor.

The worker's representative noted that the job set-up has changed from when the worker started working in the area in 2001. She noted that the physiotherapist did not assess the job tasks as they were initially performed.

The worker's representative noted that the worker has been employed by the employer for 24 years and that her CTS stems from the number of years she spent doing repetitive motions on the job. She submitted that the common denominator regarding her work requirements was repetitive hand motions and stated that:

"These repetitive hand motions involve excessive gripping, excessive bending, having to use excessive force, sometimes for long periods of time, grasping or holding onto items of varying amounts of weight."

The worker provided information regarding her job duties in various positions with the employer. In answer to a question, she acknowledged that she had pain in her wrists for approximately five years before reporting the problem in February 2004.

Analysis

To assist with its understanding of this case, the Panel attended the work site and observed the tasks performed in the parcel area as it currently operates. The Panel also observed the tasks performed in the sorting area where the worker was employed prior to October 2001.

The Panel finds that the job in the parcel area has evolved significantly since the inception of the area in 2001 and that the worker's condition became more problematic after she started in this new area. The Panel accepts the evidence that initially there was little job rotation with the main emphasis being the loading of trucks, a task that could last up to four to six hours. The Panel also accepts the evidence that scheduled breaks were frequently not taken because of the volume of parcels to be processed. The Panel notes there have been ergonomic changes in the area, such as the addition of a 'transition board' in the feeding area and a proper rotation schedule, which have reduced the likelihood of injury.

The Panel observed the parcel job as it is currently being performed. Although much has changed, the Panel observed workers performing tasks with their wrists in non-neutral positions which the Panel considers could aggravate a pre-existing wrist condition. This was particularly the case in the feeding area.

The Panel also observed workers performing duties in the letter sorting area in which the worker was earlier employed when her symptoms first commenced. The Panel understands that few changes have been made to this area in the intervening years. The Panel did not note workers using postures that would be causative of CTS and thus concludes that the original CTS symptoms were not likely caused by her job duties at that time.

The Panel finds the information provided by the physiotherapist to be of little assistance in deciding the issue of claim acceptance. The evidence shows there have been many changes to the job site since the worker started working in the parcel area in October 2001 and that the physiotherapist did not assess the tasks at that time.

The Panel accepts that the problem with her wrists started in approximately 1999 and worsened after she moved to the parcel area. According to the worker's report of injury, the worker's symptoms in her right hand "…went on and off for the last couple years" and that her left hand started to bother her about six months before she reported the problem. The Panel considers it likely that the worker suffers from pre-existing bilateral CTS which began to bother her while she was working in the sorting area. From the evidence provided at the hearing and from the work site visit, the Panel is unable to attribute the worker's CTS to her duties in the sorting area. However, the Panel finds, on a balance of probabilities, that the worker's duties in the parcel area aggravated her condition with the aggravation commencing as early as December 2001, shortly after the worker started in the parcel area. As such, her claim is acceptable as an aggravation of a pre-existing condition.

The employer's appeal is accordingly denied.

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 5th day of January, 2005