The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) 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. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s bilateral CTS, which became symptomatic in February 2007, arose out of and in the course of her employment.

Worker’s position

The worker was represented by an advocate at the hearing. The position advanced on behalf of the worker was that the job duties were very physical in nature, causing pain and numbness in the worker’s hands, radiating to her shoulder, and resulting in her ultimately being required to stop work. The worker had no issues or conditions with her wrists or arms prior to commencing work with the employer in October 2006. The majority of the worker’s job functions were repetitive, involved the use of both arms and both wrists, and there was flexion, a great deal of gripping and high force. Based on this, it was submitted that the workplace duties caused her medical condition and that the worker’s claim ought to be accepted.

At the hearing, the worker testified that in about mid-January 2007, she started feeling pain, first in her right hand, and then also in her left hand. The pain slowly became more frequent and longer in duration, and her hands starting feeling like they were falling asleep. The condition got worse and worse until by February 1, 2007, she was in such pain when she was at home doing the dishes, that her husband convinced her to go to see a doctor. Testing confirmed that she has CTS and surgery was scheduled for May 2008. No modified duties were available, so the worker had not returned to work with the employer. The worker testified that at the time of the hearing, her condition had generally stayed the same as it was in February 2007. She stated that it doesn’t get any better and that she can’t do anything repetitive.

The worker also described her duties with the employer. She was responsible for cleaning 20 residents’ rooms per day, plus spot cleaning the nurses’ station, dining room and hallways. This would involve washing the floors, cleaning bathrooms, restocking supplies, dusting and wiping down surfaces. She would also assist residents during mealtimes. The worker demonstrated the manner in which she performed the mopping duties, and it entailed using her wrists to move the mop in a side to side motion. This method placed less strain on the back, but involved increased gripping and flexion/extension of the wrists. The worker estimated that she spent four to five hours per day mopping, and each room would require at least ten minutes, depending on the condition of the floor. The longest continuous period of mopping would be five minutes at a time. She would also have to wring out the mop at least two or three times per room. The worker also showed the panel how she performed the sweeping and dusting, and confirmed that her wrists were in a neutral position when she did these duties. It was evident from the worker’s testimony that she was a conscientious employee and that she performed her cleaning duties in a thorough manner.

Employer’s Position

An advocate appeared on behalf of the employer at the hearing. The position put forward by the employer was that during the worker’s short period of part-time employment prior to the onset of the bilateral condition, her duties were varied and quite light. The work being done by the worker did not entail the generally accepted occupational risk factors in the development of CTS, whereas she did have some of the major non-work related risk factors. There was a lack of a cause and effect relationship with work, and the appeal ought to be dismissed.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that she suffered injury by a workplace accident within the meaning of subsection 4(1) of the Act. In order to do so, we must find that her bilateral CTS arose out of and in the course of her work duties. Based on the evidence before us, we are not able to make that finding.

CTS is defined as the impairment of the motor and/or sensory function of the median nerve as it traverses through the carpal tunnel. It is caused either by intrinsic swelling of the median nerve or by extrinsic compression of the median nerve by one of the many surrounding structures of the wrist. CTS has a variety of causes. It can be caused by underlying systemic conditions such as rheumatoid arthritis, osteoarthritis, hypothyroidism and diabetes. Middle aged females, individuals with a high body mass index, smokers and people genetically pre-disposed to the development of CTS are also at increased risk for the development of CTS. It can also be caused by some work activities. There remains considerable debate in the medical literature as to what work factors may cause CTS. Occupational factors most commonly accepted to be associated with CTS include a wrist injury, frequent use of vibrating hand tools or any repetitive, forceful motion with the wrist bent, especially when done for prolonged periods without rest. It is generally considered that the greatest frequency of occupationally related CTS is found where the job duties involve high force and high repetition.

To decide this appeal, the panel must carefully examine the worker’s job duties to determine whether, on a balance of probabilities, they might have caused her CTS.

After considering the evidence before us, the panel is of the opinion that the worker’s CTS was not causally connected to her work duties. The job duties being performed by the worker were varied, involved limited force, and for the most part, a neutral wrist position was maintained. It was only the mopping which involved forceful gripping and bending of the wrist. However, while the mopping duties involved repetitive flexion and extension, the worker did not sustain these movements for prolonged periods without rest. The worker’s evidence was that she would only mop continuously for approximately 5 minutes at a time. The mopping duties would be interspersed with a variety of other tasks. In the panel’s opinion, the nature of the worker’s job duties were not the type which are typically associated with the onset of CTS symptoms.