Decision #74/08 - Type: Workers Compensation

Preamble

On February 21, 2007, the worker filed a claim with the Workers Compensation Board (“WCB”) for left elbow and forearm complaints that he related to his arm resting on a window frame while working as a long distance truck driver. The claim for compensation was denied by primary adjudication on May 15, 2007 on the grounds that the employer was not aware of any left forearm and elbow complaints made by the worker during the period for which he was claiming the onset of his symptoms. On October 9, 2007, Review Office confirmed that the claim was not acceptable as it was unable to establish that the worker sustained an accident that arose out of and in the course of his employment. The worker disagreed with the decision and his worker advisor filed an application to appeal with the Appeal Commission. A hearing then took place on March 4, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on February 21, 2007 for discomfort in his left forearm and elbow that he related to his arm being in a certain position while operating the steering wheel for a prolonged period of time. The worker indicated that he awoke on April 14, 2006 with tingling and total numbness in at least three fingers (left third, fourth and fifth fingers) and it progressed to where he had very limited strength in his left forearm. He said he had no sensation of how much pressure he applied with his hand/fingers. His forearm and shoulder would stiffen up and he could not move them anymore. It would go up to his neck and it hurt to turn his head.

The worker said he delayed in reporting his forearm and left elbow difficulties to his employer for a couple of weeks after April 14, 2006 as he did not think it was serious enough to file a claim. He said he was limited in what he could do but he was not disabled. He said he learned to live and deal with his discomfort and learned how to minimize the effects of it.

A WCB adjudicator contacted the employer on February 22, 2007. The employer advised that the worker abandoned his truck and asked for a ROE. Their records indicated that the worker was marked down as having quit on February 9, 2007. Prior to that, the worker had been looking to quit or get fired and at one point he asked for a leave of absence. The employer said he was unaware of a work related accident or injury.

On March 22, 2007, a WCB adjudicator asked the worker to explain why he thought the onset of his symptoms were work related. The worker indicated that he would rest his left elbow on the door’s arm rest when driving which was about shoulder height. He would rest his arm on the arm rest for the entire time he drove which was 14 to 15 hours a day. He would drive for 3 to 4 hours and then take a break. He would have his elbow propped on the arm rest for at least half of the time, maybe more. He said he was off work due to his left elbow symptoms.

The WCB adjudicator contacted a number of dispatchers and they were unable to confirm that the worker complained of left forearm or elbow symptoms.

On February 2, 2007, an upper extremity specialist indicated that the worker was seen in clinic that day and gave a history and physical examination that was consistent with ulnar nerve neuropathy that was likely secondary to compression at the cubital tunnel. He noted, however, that nerve conduction study and EMG was unable to confirm this diagnosis as the worker was unable to tolerate the test.

In a report to the WCB dated April 15, 2007, the family physician commented that she saw the worker for the first time on April 17, 2006 at which time he reported a few months history of left hand numbness on the ulnar side. This was transient initially but became persistent over a few days prior to his visit. There was a past history of left shoulder surgery in 1999 and 2002. The worker stated that he had been working as a truck driver for about a year.

In a May 15, 2007 decision, it was determined by primary adjudication that the worker’s claim for compensation was not acceptable. Primary adjudication stated that the problems experienced by the worker could not be directly related to his work activities as the employer was unable to confirm any awareness of left forearm and elbow symptoms during the period for which he was claiming the onset of symptoms. It also noted that when seen for medical treatment on April 17, 2006, the worker provided a few months history of left hand numbness. Based on all the information, primary adjudication felt that the worker’s left forearm and elbow complaints were not directly related to the performance of his job duties.

In a submission to Review Office dated September 6, 2007 a worker advisor contended that the worker’s restrictions and symptoms were caused by an accident as defined under subsection 1(1) of The Workers Compensation Act (the “Act”). The worker advisor indicated that the worker’s work duties include driving, strapping, tarping, loading and unloading. The worker clarified that he was referring to the window frame, not the armrest, when describing where his elbow was resting while driving. She stated that when he saw the specialist on February 2, 2007, the worker’s symptoms had improved because he was not tarping as much as usual and he was avoiding his arm in positions which aggravated the symptoms such as against the window frame while driving. The worker advisor stated that the medical evidence did not clarify the specific nature of the relationship between the worker’s symptoms and his work duties, whether as a direct cause-effect or an aggravation. What it did show was that the worker’s condition was related to his employment.

On October 9, 2007, Review Office confirmed that the claim for compensation was not acceptable. It stated that the worker related his ulnar nerve neuropathy condition to his work activities and indicated that his employer was aware of his problems. The WCB adjudicator contacted the list of witnesses and they did not confirm any knowledge of the worker’s problems prior to leaving his employment. There was no other corroborating evidence to establish that the worker’s problems arose out of his work duties. Review Office concluded that the claim for compensation was not acceptable as it was unable to establish that the worker sustained an accident that arose out of and in the course of his employment as required under subsection 4(1) of the Act. On November 7, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Following the hearing held on March 4, 2008, the appeal panel requested additional information from the upper extremity specialist. The specialist responded to the panel’s request for information and copies of his reports were sent to the interested parties for comment. On May 30, 2008, the panel met to render its final decision and considered a final submission by the worker advisor dated May 6, 2008.

Reasons

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 left ulnar nerve condition arose out of and in the course of his employment on April 14, 2006.

The worker’s position:

The worker was represented by a worker advisor at the hearing. The argument put forward by the advisor was that the worker was employed as a long haul truck driver at the time he was diagnosed with left ulnar neuropathy and that his condition was related to the job duties. Medical literature indicates that ulnar neuropathy can be triggered by a number of different causes, some of which are unknown. Some of the known risk factors are diabetes, rheumatoid arthritis or traumatic injury, but none of these applied to the worker’s situation. Another known trigger is prolonged pressure on the nerve from leaning on the elbow. For the majority of the worker’s shift, he would have his elbow leaning on a plastic armrest support and it was submitted that this was what triggered the ulnar neuropathy. While there may also have been other risk factors at play, there was still a direct cause and effect relationship as the work duties could have aggravated an underlying condition. It was therefore submitted that the condition should be compensable as either being caused by work duties or as an aggravation of a pre-existing condition.

At the hearing, the worker testified as to the nature of his job duties. He had been a long distance driver since January 2005, driving 11-13 hours per day, in 3 1/2 hour stretches with 15 minute breaks. During the period in question, he was driving 11 hours per day. His employer had only newer trucks (less than 4 years old) and they were in excellent working condition. The trucks had hydraulic steering and could be turned with a single finger. The driver’s side door had a plastic ledge below the window designed to be used as an armrest. The worker rested his left forearm on the armrest at least 50% of the time and he could steer the vehicle while his arm was on the ledge. The worker did not indicate that there were any problems arising from the quality of the roads, vibration or vehicle maintenance problems.

In April 2006, the worker had driven from Manitoba to Surrey, BC and was returning with a load to Chicago when he was awakened in the middle of the night by sudden onset of a very strong tingling pain in his left arm. He had been driving 11 hours on each of the two preceding days after picking up his load. In the days or weeks beforehand, he had no indication whatsoever of any problem. There had been no previous complaints of pain. He had been driving the same truck in the same position for over a year and basically nothing had changed. The worker was adamant that medical histories which reflected “insidious onset” were not accurate in that regard.

The worker denied any acute trauma to the left elbow. The worker described job duties of tarping and strapping of loads, which were performed only at the time the truck was loaded. The panel reviewed these duties with the worker and the worker demonstrated the mechanics of how these tasks were performed.

The worker also testified that he had slept in a head “cradle” position since the age of 11, 100% of the time, lying on his back with his fingers interlaced under his head. After the April 14, 2006 incident, he changed his driving positions and strived to change his sleeping habits. He initially had some improvement in his symptoms and there was no time loss associated with the condition. The worker continued with the same number of miles per week. On February 9, 2007, the worker left his employment due to non-work related matters. His evidence was that his left ulnar condition worsened in the weeks after he left his employment, which led him to schedule a second appointment with the upper extremity specialist in April, 2007.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s left ulnar nerve condition arose out of and in the course of his employment on April 14, 2006. In order for the appeal to be successful, the panel must find that the worker’s condition was related to the duties performed by the worker in the course of his employment. On a balance of probabilities, we are not able to make that finding.

After reviewing the nature of the duties being performed by the worker, the panel is not satisfied that the job duties caused the left ulnar nerve condition. At the hearing, the worker described tarping and strapping duties which required a very firm grip and considerable force. On questioning, however, it appeared to the panel that the duties did not involve extreme and repetitive flexion of the left arm towards the shoulder, which is the type of movement typically associated with the development of an ulnar neuropathy. Further, the worker was only required to perform these duties at the time of loading, which proportionately, was a smaller part of his job. There was also a significant gap between the sudden onset of the worker’s symptoms and the last performance of the tarping duties two days earlier.

With respect to the arm positioning, although the worker did lean his elbow on the armrest, the worker did not identify any other risk factors normally associated with causation of an ulnar condition such as excessive vehicle vibration or resistance from the steering wheel.

The panel found it notable that the “head cradling” position which the worker said he slept in since the age of 11 is one which places considerable pressure on the ulnar nerve at the elbow and is a position which can be a risk factor for the development of ulnar neuropathy.

The panel also noted that the worker suffered a very sudden onset of his pain, which is not the normal progression of an ulnar condition related to work duties. Further, the worker’s condition actually worsened, rather than improved, after he left his employment in February 2007 and removed himself from the positioning which he believes caused or aggravated his condition.

The foregoing would suggest that there are factors other than work duties which were at play in the development of the worker’s condition.

After the oral hearing, the panel requested an opinion from the upper extremity specialist as to possible etiology of the worker’s ulnar nerve condition. His response was as follows:

It is very difficult to know the exact answer. There are multiple causes for ulnar neuropathy including idiopathic. Osteoarthritis, injuries, leaning on the elbow, or certain positions can result in neuropathy. (The worker) has more than one possible contributing factor.

On a review of the evidence as a whole, the panel is unable, on a balance of probabilities, to relate the worker’s left ulnar condition to his job duties. Only minimal risk factors were identified with his employment and the panel is of the opinion that the worker’s sleeping position was more likely causative of his condition than the driving position. We therefore find that the claim is not acceptable. The appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 10th day of June, 2008

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