The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the issue of whether a worker's job duties caused her bilateral carpal tunnel syndrome ("CTS").

On May 3, 2005, the worker filed a claim with the Workers Compensation Board (the "WCB") for bilateral CTS that she related to 30 years of repetitive job duties as a cafeteria worker.

The WCB denied the claim and took the position that the worker's job duties did not involve highly repetitive motions and were not the causative factor in the development of her bilateral CTS condition. This position was upheld by Review Office on January 18, 2005. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on June 8, 2006, at the request of the worker's advocate. The worker attended and provided evidence. She was represented by an advocate. The employer's representative also attended and provided submissions.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

Reasons

Background
The worker was employed as a cafeteria worker for approximately 30 years. In early 2004 she complained of numbness in her hands to her physician. She was sent for a nerve conduction study in June, 2004 which revealed "bilateral severe carpal tunnel syndrome L>R". The clinical symptoms indicate "numbness of let hand. Works at…cafeteria…numbness of left hand on arising and during working hours. Painful at night. Has decreased sensation of finger tips. Known diabetic". These test results are reiterated by the worker's physician in his first report to the WCB on April 15, 2005.

On May 3, 2005, the worker filed a claim for compensation, taking the position that her job duties caused her CTS. She described her main duties as cutting desserts with a knife using her right hand and scooping pudding and ice cream. The ice cream was sometimes hard to scoop and she would use a lot of pressure with her hands to get it out. Other job duties included cashier work, preparing coffee and setting up catering events.

Additional information about her job duties was obtained by a WCB adjudicator that same day. A memorandum to file notes that the worker spent 3 hours per day cutting and slicing desserts that were sometimes partially frozen. She would use both hands forcefully to cut the desserts. She worked full time and there had been no changes to her job duties and no increases to her workload.

The memorandum goes on to state:

"Claimant is right handed. She sates that her symptoms began presenting approximately 1 year ago. She states that she began noticing tingling and numbness in all of her fingers…The numbness would occur once or twice per day, and last for a minute or two. The symptoms would then disappear, and things would be fine. Claimant states that the symptoms would present at different times, whether it be during her cutting duties or when doing nothing at all with her hands. Symptoms slowly began to get worse, and currently experiences numbness and tingling in all of her finger…She states that her left hand is worse than her right. She states that her symptoms are usually more frequent during the day, but she has woken up at night with numb fingers…There is no connection between the sudden onset of tingling and her duties ? she could be doing absolutely nothing but sitting watching television…"

The worker's job duties were investigated.

On June 28, 2005, the employer indicated that the worker's job duties were quite varied and there was not a lot of repetition. The worker would portion pies for about 20 minutes, cheesecake for 20 minutes, etc. The remainder of the shift would be spent doing other varied tasks such as setting up and delivering for catering events. The supervisor stated that they had been combining some of the positions, as there had been a reduced number of customers due to construction and that this led to many of the roles including more varied tasks. She indicated that she was aware of the worker's wrist problems and that the worker had been off for similar symptoms in the past. She was given a different knife and special utensils from the occupational therapy department.

A work site visit was done on September 30, 2003 at 8:30 a.m. A memorandum to file outlines the worker's duties:

"She is responsible for the desserts for the cafeteria which includes cutting, scooping, dishing out, pouring, squeezing

6:30 to 7:30 she sets up her work station, getting Styrofoam plates, scoops, trays, food carts ready

7:30 to 9:00 she works on the following

she cuts with her right hand and uses her left hand to push down on the knife (when she needs her left hand)

Fruit cups
12 to 14 servings
uses spoon to scoop fruit servings onto bowls
places bowls on trays then puts trays into food cart
no wrapping

Jello
20 servings
cuts jello into cubes (one pan)
uses gloves to scoop the jello into bowls
places bowls on trays then puts trays into food cart
no wrapping

Pies
cuts 2 pies into 8 slices each
cuts 1 partially frozen pie into 8 slices, not much force, has very sharp knifes

Cheesecake
Cuts one 18 x 12 pan into 24 pieces
Cheesecake is approximately 5 inches deep, not very thick
Makes 5 straight/steady long cuts one way and then 3 cuts the other way
Uses both hands
Lifts slices to plates which are placed on trays and then into the food cart

Whipped cream
Scoops whipping cream into piping bag with large metal spoon
Removes jello trays from food cart and places on the counter
Squeezes piping bag in a circular motion with both hands for the 20 jello servings
Returns trays to food cart

Parfaits
Once per week she prepares 50 parfaits
One type of pudding per week
Scoops pudding with ice cream scoop into small plastic cups
Squeezes whipped cream from the piping bag in a circular motion with both hands into small plastic cups
Scoops pudding and then tops with whipped cream

Waffles (discontinued one month ago)
Was responsible for setting up the waffle station 3 times per week
Places the waffle iron onto a cart then pushes the cart to the cafeteria area
Slides the waffle iron from the cart and to the counter

Coffee urn
Pours 4 pitchers of coffee into an urn
Pushes urn on a cart to the cafeteria area, lifts urn to table
Does not have to dispense the coffee

Assists with catering duties, delivering orders
Sets up for lunch, puts food out in steam tables

One year ago she was doing 60 cheesecakes, 20 jello and 15 fruit cup per day
Customer count is down by 400 as the cafeteria will be closing
Claimant stopped doing her work a few times for a few moments while I was there because of the numbness, tingling and pain"

At the hearing, the worker testified that the above description was not accurate. She added the following clarification:

- Fruit cup servings were 24 and not 12 to 14
- Jello servings were 40 and not 20
- Pies were both fresh fruit and frozen. The knife used to cut the pies covered the full length of the pie. The worker would hold the handle of the knife with her right hand and push down on the tip of the knife with her left hand.
- There was fresh and frozen cheesecake. She cut the fresh cheesecake by sliding the knife. There were 6 frozen cheesecakes which were cut into 10 pieces.
- She held the top of the whipped cream piping bag with her right hand and squeezed with her left
- She also did fresh and frozen desserts. Frozen desserts were done twice a week.
- The parfaits had several layers of pudding, frosting and whipped cream.
- After the dessert serving was done at 9 am she would set up the showcase of desserts then go on a coffee break. After her coffee break, she helped wrap sandwiches and bring them to the cafeteria. Her lunch break was between 11:30 am and 12 pm. From 12 pm to 1 pm she worked on the cash register. From 1 pm until the end of her shift she would serve dessert or refill desserts and sandwiches. Occasionally she would also serve additional light desserts.

Worker's Position
The worker says that her CTS must have been caused by her job duties as she says that her right hand was more symptomatic than the left; as she is right hand dominant, this would suggest that her CTS was brought on by her duties. She also says that she does not partake in any extra-curricular activities. The only risk factor that she has that might pre-dispose her to CTS is her diabetes. She says however that diabetes is now disputed as being a cause of CTS. In support of her position the worker relies on the medical opinions of her two treating doctors:

"I would like to support [the worker's] position that the [CTS] that she has is not related to her diabetes.
A recent review of the literature shows several articles that suggest diabetes and [CTS] are not related…" (treating endocrinologist - March 17, 2006 report)

"It is impossible with [CTS] to state categorically that this is a result of a repetitive injury in the work place. There is no single causative injury which can be pinpointed as the cause of the problem. However, I feel that it is not up to her to try and prove that the condition was caused by her work but rather by the Compensation Board to disprove that it was not." (treating plastic surgeon - May 5, 2006 report)

Employer's Position
The employer says that the worker's job duties are not causally related to her CTS as they do not include generally accepted work-related risk factors in the development of CTS which include high force repetitive activity, extreme sustained flexion and extension of the wrists.

Analysis
Section 4(1) of The Worker's Compensation Act (hereafter the "Act") provides:

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 the case before us therefore, the panel must find that the worker's CTS arose out of and in the course of employment. On the basis of the evidence before us, we are unable to make that determination.

CTS has many causes, some of which are unknown. In the case where a worker develops bilateral CTS, there is a strong suggestion that the cause is found elsewhere than in her work duties. For this reason, it is extremely important to understand the nature of the worker's duties and the position both her wrists are in during the performance of these duties to determine whether it is the work duties that are causing stress on the worker's wrists sufficient to cause CTS.

Based on the evidence before this panel, we find that the worker's duties were neither repetitive nor forceful. While there is some conflicting medical evidence as to which hand was more severely affected by the CTS, we do not find this pertinent in the case at hand. The most forceful duty, by the worker's description, was cutting frozen pies, cheesecake and dessert. Both hands were used for this task which was of short duration and done in a neutral wrist position. The other duties mainly involved a relatively gentle twisting motion on the forearm. Once again, the worker demonstrated a neutral wrist position when doing these duties.

For these reasons, we are unable to find, on a balance of probabilities that the worker's bilateral CTS arose out of and in the course of employment.

Accordingly, her appeal is denied.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of July, 2006