The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with whether or not there is a relationship between the worker’s job duties as a driller’s helper and the development of his bilateral carpal tunnel syndrome (“CTS”) condition. Both primary adjudication and Review Office determined that there was no relationship. The worker disagreed and appealed to the Appeal Commission. A hearing was held on March 12, 2008 to consider the worker’s appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the Workers Compensation Board (“WCB”) for soreness and pain in both wrists and hands that he related to his work duties as a driller’s helper which involves wrenching and connecting pipes. The worker indicated that he commenced employment with the accident employer on February 23, 2007 and that his symptoms began approximately March 1, 2007 when he noticed pain, tingling and numbness in his hands and wrists at night while sleeping. He said he has very little sensation in his hands and has a hard time lifting, grasping and turning wrenches. His last day of work was April 15, 2007.

The employer’s accident report indicates “Worker states he reported that he is suffering from carpal tunnel due to work performed on the drills. No incident report has ever been received from the field.”

Medical reports on file show that the worker sought medical treatment on March 29, 2007 and provided a history of increased intensity of bilateral wrist pain to his treating physician. The physician noted that the worker was seen one week ago and carpal tunnel syndrome was questioned. In a second report dated April 16, 2007, the worker’s entrance complaints were listed as bilateral wrist and hand pain over 5/52 weeks. The diagnostic impression was CTS and flexor tendinopathy.

On May 4, 2007, the worker advised a WCB adjudicator that he worked as a baker for approximately 10 years prior to working with the accident employer and that he had no symptoms with his hands during this time. His current job with the accident employer involved working with heavy pipes for 12 hour shifts, 7 days a week. The weight of the pipes varied from 80 lbs. to 100 lbs. A significant portion of his job was removal of the core sample and any jammed rock debris from the pipes. To accomplish this task, he would hold the pipe up with his left hand and hammer out the rock with his right hand. He was using both hands all the time. The worker advised that he does not have high blood pressure, diabetes or traumatic injuries to his wrists.

On June 1, 2007, the worker’s supervisor advised a WCB adjudicator that the tapping of pipe was not continuous and there was some tapping to get the rocks out. When they have to tap out clay and sand there is more tapping involved as it does not come out as easily as the rock. There was a lot of turning, twisting, flexion and extension of the wrists when using wrenches. The job was very repetitive in nature. The duration they work at one time would be about 20 minutes at a fairly hard and steady pace while working with pipes and they would stand around for about 40 minutes while the drilling occurs. He said the worker complained to him that his wrists were sore because of the work duties. He said that he has co-workers who have similar problems with their hands/wrists.

On June 28, 2007, the worker’s claim for compensation was denied on the grounds that the adjudicator could not relate the development of the worker’s CTS condition to his work duties given that he performed the work duties only five days before the onset of his symptoms occurred.

On July 31, 2007, the worker appealed the adjudicator’s decision of June 28, 2007. Included with the appeal was nerve conduction study results dated July 3, 2007 which confirmed that the worker had moderate right and moderate to moderately severe left CTS. On October 12, 2007 the worker provided Review Office with additional information concerning his job duties as a driller’s helper.

In a decision dated November 8, 2007, the Review Office determined that the claim for compensation was not acceptable. Review Office found it unlikely that the worker would develop moderate to severe CTS in the short period of time that he performed the job duties. It noted that the worker was right hand dominant and the evidence on file did not suggest that his job duties involved high force repetitive activity or extreme full wrist flexion/extension of the left wrist that would account for the left wrist condition being worse than the right. The Review Office concluded that the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of employment. On December 1, 2007, the worker disagreed with Review Office and filed an appeal with the Appeal Commission and a hearing was arranged.

Reasons

Legislation

The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and the policies of the WCB’s Board of Directors. As this appeal deals with claim acceptance, subsection 4(1) is applicable. It provides that compensation is payable where personal injury by accident arising out of and in the course of employment is caused to a worker.

Worker’s Position

The worker explained his position to the panel and answered questions posed by the panel.

The worker submitted that his bilateral CTS condition was caused or aggravated by his employment duties as a driller’s helper. He noted that he worked as a baker for many years before working for the employer and that he never had any symptoms or problems with his hands.

The worker reviewed the duties of a driller’s helper. Regarding duties which involve the wrists and hands, he identified extensive use of wrenches including constant repetitive wrenching and twisting. He also identified emptying core tubes by holding the tubes in his left hand and tapping the tube with a steel hammer or wrench with his right hand. He said this produced significant vibration in his hands, especially his left hand. He noted the task of chipping out a frozen water line with a hammer and lifting and moving heavy core boxes.

The worker advised that he used splints at night and was prescribed medication for the injury. He advised that his condition has improved since he left work but that he has been referred to a physician regarding possible surgery. The worker also advised that he has re-schooled himself and is currently working in a sales position.

Employer’s Position

The employer was represented by a consultant and its health and safety officer. The consultant read a submission into the record. Both representatives answered questions posed by the panel.

The employer’s representative submitted that the development of CTS, “…described on the left side as being moderate to severe, within a period of five days is, from a medical standpoint, highly improbable.” He also submitted that it was not open to consider that the work duties caused an aggravation of a pre-existing condition because there was no evidence of pre-existing CTS. The representative noted that the worker’s condition was bilateral, and that the non dominant wrist is more affected than the dominant wrist contradict work relatedness. He submitted that the description of the duties doesn’t meet the criteria in terms of factors that would lead to “repetitive action, the motion, the twisting.” He acknowledged there was gripping but that there did not seem to be a lot of repetitive motion in the wrists.

In answer to questions, the employer representatives acknowledged that working in the drilling industry can involve risk factors for the development of CTS. The health and safety officer said “Factors like gripping and vibration, cold, extreme temperatures, smoking, whatever all of those factors that can lead to it, all are present within the industry and on the job sites.”

The health and safety officer provided details and explanation regarding the activities and duties involved in drilling.

Analysis

The issue before the panel was whether the worker’s claim for injury is acceptable. For the appeal of this issue to be successful the panel must find that the worker’s injury, bilateral CTS, arose out of and in the course of the worker’s employment. In other words, the panel must find that the injury was caused by employment. The panel made this finding.

The panel finds, on a balance of probabilities, that the worker suffered injury by accident arising out of and in the course of his employment as a driller’s helper and accordingly his claim is acceptable. In reaching this conclusion the panel relies upon the following:

• employer’s evidence at the hearing that the position of driller’s helper has risk factors associated with the development of CTS. The panel also notes that the worker’s supervisor told the WCB that other workers have similar problems with their wrists/hands.
• worker’s description of his job duties which demonstrated significant high force activity involving motions of the wrist, including; twisting, gripping, and pulling;
• worker’s evidence that prior to commencing work as a driller’s helper he had no symptoms in his hands or wrists and does not have high blood pressure, thyroidism or diabetes;
• worker’s evidence that after working in this position for approximately a week he began to develop symptoms in his hands and wrists;
• worker’s evidence that his symptoms worsened and by April 15, 2007 he could no longer perform his duties;
• electrophysiologic study performed July 3, 2007 indicating moderate right and moderate to moderately severe left CTS;

The panel disagrees with the suggestion that the worker developed moderate to severe CTS within five days of employment. The panel notes the evidence establishes that the worker was beginning to experience symptoms in his hands and wrists approximately March 1, 2007. The panel also notes the condition was first diagnosed on March 29, 2007. The evidence on the extent of the condition was not available until the electrophysiologic study was conducted on July 3, 2007. The panel notes this study does not purport to describe the extent of the worker’s condition in March 2007 but at the time of the July test date. At the hearing the worker advised that his symptoms worsened but that he was able to continue working until April 15, 2007 when he finally laid-off work. This is a period of approximately 6 weeks after the commencement of employment. During this period the worker worked 12 hour shifts, seven days a week (less a two week break period in late March). The panel finds there was sufficient time and exposure to risk factors for the worker to develop CTS, as evidenced in the July 2007 diagnostic tests.

At the hearing it was noted that the study results showed the worker’s left hand condition as being worse than his right hand condition, notwithstanding that he is right hand dominant. The worker explained that the task of tapping the core from the core tube placed significant stress on his left hand in terms of holding the tube and absorbing vibrations. He also indicated that other duties involved the use of his left hand. The panel finds that greater severity of the condition in the non-dominant hand, as recorded by the electrophysiological study, is not inconsistent with a finding that the worker’s injury is work-related.

The worker’s appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of March, 2008