Decision #104/06 - Type: Workers Compensation

Preamble

This appeal deals with the causal relationship between the worker's job duties and his bilateral carpal tunnel syndrome ("CTS").

On May 7, 2004 the worker filed a claim with the Workers Compensation Board (the "WCB") for bilateral CTS. His claim was denied at both the adjudication and Review Office levels. The worker then appealed to the Appeal Commission.

An appeal panel hearing was held on June 15, 2006. Both the worker and the employer appeared. They were represented by advocates.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim for bilateral carpal tunnel syndrome (hereafter "CTS") which he related to the nature of his employment activities as a labourer and to a change in job duties which commenced in August 2003.

The worker has been employed with the accident employer for 10 years, working as a shelter servicer for the last nine months. The worker described his work duties as "…a lot of wrist movements with sweeping, shoveling, scrubbing and using the pressure washer and even when I am driving with my hands around the steering wheel. I also do some lifting when handling garbage." In January 2004, he stated he was chipping ice away from bus shelters when his hands started to ache.

A description of the worker's job duties was provided by the employer on June 1, 2004. The duties of a shelter servicer are listed as follows:
  • cleans passenger shelters, driver comfort stations and collects refuse from bus loops and transit terminals
  • clears snow and removes ice build-up from passenger shelters and comfort station entrances
  • assists with moving and positioning large panes of glass being replaced by carpenters at shelters
  • performs other duties as required.
On June 16, 2004, the worker provided the following information to his WCB adjudicator:
  • he had symptoms consistent with CTS prior to January of 2004 which became worse;
  • there was no specific accident or incident. He initially thought his symptoms were related to smoking. He immediately quit smoking hoping things would improve. Over the next months there was no significant improvement and he continued to perform his regular work duties;
  • he smoked for 24 years, one package per day, and quit smoking in February 2004;
  • the worker had never been diagnosed with arthritis, hypo or hyper thyroidism or diabetes in the past and never sustained any significant injuries to his wrists.
  • extra-curricular activities included playing softball 2 to 3 times per week and household chores.
A WCB medical advisor reviewed the worker's job duties on June 18, 2004 and opined that it was unlikely that there was a cause and effect relationship between these duties and the worker's bilateral CTS. He added that bilateral CTS usually suggests a systemic cause for the CTS. In the worker's case, he thought, on a balance of probabilities, that the worker's CTS was more likely caused by his age and body habitus.

On June 18, 2004, Rehabilitation and Compensation Services denied the claim for compensation based on the following rationale:
  • the worker's job duties did not involve high force or repetitive movements consistent with the development of CTS;
  • the opinion expressed by the WCB medical advisor on June 18, 2004; and
  • the fact that the worker initially related his symptoms to excessive smoking over the years.
On April 6, 2005, a union representative, acting on behalf of the worker, appealed the decision to deny the claim. The representative provided additional information concerning the worker's job history with the employer and the various positions he held since 1994. He asked the WCB to clarify what job duties were taken into consideration at the time of the June 18, 2004 decision. He also asked the WCB to consider the claim based on an aggravation of an underlying pre-existing condition.

In response to the union representative's appeal, Rehabilitation and Compensation Services indicated that it considered the job description provided by the union on June 1, 2004 and the new information that was submitted on April 6, 2005 regarding the position of Shelter Servicer. Based on his review, the adjudicator felt there was no new evidence provided that would warrant a change to his initial decision.

The adjudicator stated that the WCB "…was not disputing the fact that given the worker's diagnosis, that he likely experienced symptoms not only while performing his job duties but other non-work duties such as household chores or playing soft ball. "This, in itself is an insufficient basis to suggest a casual or aggravational relationship between his diagnosis and his work activities."

On July 7, 2005, the employer's representative opposed the acceptance of the claim based on the following factors:
  • contradictory evidence provided by the worker as to the onset of his symptoms;
  • the worker's job duties were not highly repetitive or forceful and he had the benefit of micro breaks;
  • the worker is right hand dominant and he performs most of his job duties with his right hand, yet his CTS condition is bilateral in nature which called into question the work relatedness.
On December 23, 2005, Review Office confirmed that the claim was not acceptable on the basis that the evidence did not establish that an accident occurred. Review Office felt that the bilateral nature of the worker's condition was suggestive that the etiology of his condition was non-work related. It felt that the job duties performed by the worker did not require the wrists to be in positions that were generally found to be associated with the development of CTS and that the work duties were sufficiently varied in nature and were not repetitive.

Worker's position:

The worker takes the position that his bilateral CTS was caused or aggravated by his job duties.

Employer's position:

The employer takes the position that the worker's bilateral CTS is not caused by his job duties.

Reasons

To accept the worker's appeal, we must find that his job duties are causally related to his CTS - either because there is a cause and effect relationship, or an aggravation or enhancement of a pre-existing condition. We are unable to make that finding.

Subsection 4(1) of The Workers Compensation Act stipulates that a personal injury is compensable when it is a result of an accident arising out of and in the course of employment.

WCB Policy 44.10.20.10 deals with pre-existing conditions, the relevant provisions of which follow:

"…The Worker's (sic) Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Worker's (sic) Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment…

1. (a) Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker's (sic) Compensation Board will accept responsibility for the full injurious result of the accident...

Evidence concerning the progression of a pre-existing condition based on statistical norms, (such as those contained in standardized disability guides), or predictions based on the best available data, may be considered as evidence. However, where it is determined that the worker's inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

B. DEFINITIONS

1. Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

2. Enhancement: Where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

3. Pre-existing Condition: A condition that existed prior to the compensable injury."

It is evident from the above, that a compensable accident is required before any WCB benefits are paid to a worker.

At the hearing, the worker testified that in the early 1990's while employed with another company, he began to experience CTS symptoms. He saw his doctor and underwent a nerve conduction study in 1994 which revealed subsiding bilateral CTS. It does not appear that a WCB claim was filed at that time.

The worker also testified that since that date, he was continually symptomatic to a varying degree depending on the type of activity he did; more forceful and heavy work caused his symptoms to flare. However, all activity caused him symptoms. The worker explained that even holding a cup would give him symptoms of numbness which required him to frequently change hands.

January, 2004 was the culminating point for the worker. The worker explained that he was chipping ice from shelters. It was cold and he had to chip the ice with a great deal of force. By the end of the day, the pain was unbearable. He saw his doctor and underwent another nerve conduction study. This time the test revealed severe CTS, right more than left.

In the case before us, we do not find that there was a compensable accident in January, 2004. While the worker's duties in January, 2004 required force to chip away the ice, we accept that CTS requires repetitive force over a period of time. This is not the evidence in this case.

Over the past ten years of employment with his employer, the panel notes that the worker has held various positions which, although requiring the use of his hands, do not entail repetitive forceful or strained wrist positions which are the work-related factors most commonly cited as being necessary for the development of CTS.

Consequently, we find, on a balance of probabilities, that the worker's bilateral CTS was not caused, aggravated or enhanced by his work duties with this employer. We therefore find that his claim is not acceptable.

Accordingly, the worker's 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 25th day of July, 2006

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