The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On June 16, 2006, the worker filed a claim with the Workers Compensation Board (WCB) for bilateral Carpal Tunnel Syndrome (CTS). His claim was denied by WCB adjudication and Review Office on the grounds that it could not establish that the worker’s condition arose out of and in the course of his employment. The worker’s advocate appealed to the Appeal Commission and a hearing took place on August 26, 2008.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

This appeal deals with claim acceptability. Central to this appeal is the relationship between the worker’s bilateral CTS and his work duties.

On his application for compensation benefits, the worker reported that he has been employed with the accident employer for approximately 31.5 years. His job duties involved repetitive lifting and chopping as well as pulling and dragging heavy hose lines that were 300 to 400 feet in length. He indicated that his job title changed in 1998 but as he liked to work hard, he helped his crew with their duties even though he was not required to do so. The worker indicated that his job duties caused him to have severe pain from his elbows down to his wrists and numbness into his fingers.

With regard to the onset of his symptoms, the worker reported that he first noticed symptoms around 1998 and that he sought medical attention in 2001. He was advised at that time to undergo testing and it was confirmed that he had CTS in both arms. The worker stated that he did not file a claim at the time as he commenced a physiotherapy program and purchased wrist braces through Blue Cross. This helped him a little bit at the time and he continued to work. The worker indicated that he told co-workers on and off that his arms were sore but that he didn’t like to complain.

As to past work history, the worker indicated that five years prior to working with his present employer, he worked at a meat packing plant where there was a lot of repetitive motion and where he would throw beef which weighed between 700 to 800 pounds. He had no trouble with his arms at that time as he was only 18 years old.

The employer’s accident report dated June 5, 2006 provided an accident date of May 27, 2006. It stated: “Injury to both arms has occurred over several years and currently. [worker] reported injured arms to physician many years ago and resulted in nerve conduction test at HSC. Findings indicated damage that could require surgery. Continued stress on arms has resulted in extreme discomfort in both arms when arms are resting and working every day.”

In e-mail correspondence dated June 5, 2006, the employer’s representative questioned the work relatedness of the worker’s bilateral CTS condition based on the absence of a specific incident.

By report to the WCB dated June 21, 2006, the family physician noted that the worker first complained of tingling and numbness of his hands on April 9, 2001. No physical examination was performed but his symptoms were suggestive of median nerve entrapment. The worker underwent nerve conduction studies on August 14, 2001 and the diagnosis of bilateral CTS was made. The worker was prescribed night splints when seen on August 17, 2001. There were no further complaints made by the worker until May 17, 2006 when he reported that his symptoms were worse. Further nerve conduction studies were ordered but the report was not yet available. The physician speculated that the worker’s job duties required repetitive and forceful use of his arms and hands in the normal course of his duties and that this may be sufficient to explain his condition.

Nerve conduction studies dated June 14, 2006 confirmed the diagnosis of bilateral CTS, right more than left.

On June 15, 2006, a WCB adjudicator contacted the worker for additional information. The worker provided the adjudicator with basically the same information that he provided on his application for compensation benefits.

On July 19, 2006, the worker advised his WCB adjudicator that he related his hand difficulties to using axes, sledge hammers and carrying hoses at work. He stated when lifting, this creates stress from his elbows down into his fingers - everything is pulled. He noted that when carrying and holding hoses, there are 120 lbs. pounds of pressure on them. One hand is up front on the handle of the actual nozzle. As you become fatigued, you alternate the position. He predominantly used his left hand on the shut-off and the right hand on the hose. The worker further indicated that depending where he worked, he may receive 15 to 20 calls per shift or sometimes only 1 call per shift.

The file was reviewed by a WCB medical advisor on August 3, 2006. He opined that CTS was attributed to frequent forceful/repetitive grasping and twisting, vibration, and awkward positioning such as flexion or extension. When asked the question “If a person was diagnosed with CTS previously, does this pre-dispose them to developing it again in the future?”, his response was “Yes, He reported mild symptoms that he tolerated since 2001 which means he most likely had CTS all along.” The medical advisor also commented that the worker should undergo surgical release as soon as possible based on the nerve conduction studies which showed severe bilateral CTS.

On August 16, 2006, information was obtained from the employer regarding the worker’s job duties. The employer indicated that the worker was promoted to his new position on July 27, 2003. As a result of the promotion, the worker’s job duties changed as follows:

· he was responsible for the health and safety of all assigned personnel and for the up keep and cleanliness at the workplace;

· if he and his crew attended a site, the worker would assist with taking the hose to help extinguish a fire. This involved pulling the hose, forcible entry if required and lifting and carrying victims if necessary.

· the worker was responsible for daily training sessions and if necessary, the arranging of a training session or the teaching of a training session.

· at the current work site, the worker would perform duties involving the use of hoses, axes and sledgehammers twice a month based on one year. When he was posted to former geographical areas that were busier, the worker would utilize this equipment 6 to 10 times a month based on one year.

· The worker had worked at high volume work sites in the past.

On September 6, 2006, a WCB adjudicator telephoned the worker to advise him that his claim for compensation had been denied. She acknowledged that the worker’s job duties required him to perform forceful work activities but the work activities were not performed on a repetitive basis. Therefore, she was unable to relate the worker’s diagnosed condition of bilateral CTS to his work duties. In a decision dated September 8, 2006, the worker was advised that in the opinion of Rehabilitation and Compensation Services (RACS), the evidence did not establish that he sustained an accident in the workplace as defined in subsection 1(1) of The Workers Compensation Act (the Act).

By way of letter dated December 19, 2006, a union representative provided the WCB with a report by an occupational health physician dated October 26, 2006 and a videotape illustrating the demands placed on the worker’s hands and wrists during the course of his employment. It was contended that the worker’s present job duties combined with those he performed at the meat packing plant confirmed that he was exposed to highly repetitive and forceful activities during his work history.

In his letter dated October 26, 2006, the occupational health physician stated:

“[the worker] has been with [his present employer] as a [job title] since 1975 at the age of 22. Prior to this he worked for five years at [meat packing plant] in the beef cooler and shipping department. For two years his main job involved repetitively pulling shrouds draped over frozen sides of beef hanging in the cooler with gloved hands, sometimes involving forceful tugging when the shroud was frozen to the beef. Later he was throwing sides, hinds and fronts of beef, 1,100 sides a day in the shipping department. This included hanging sides from four pound meat hooks, attaching them to a roller and hook assembly from the overhead rail system. There were heavy loads across the wrists, upper back and upper extremity generally. He also used a large trim knife to remove excess fat on beef sides, weighing between 500 and 700 pounds. Apart from transient episodes of painful stiffness, he had no adverse effects from this work.

…in 2003, he has less call volumes which include similar tasks of those in previous years. Beginning in 1983 he worked for seven years… where using chain saws and K12 rotary disc saws to cut through construction materials and roofs, was relatively more common. In addition to handling power tools, the six or 12 foot pike pools are pushed, pulled and twisted to tear down ceilings and wall surfaces. Due to wet conditions and gloves, a very forceful grip is required for the job. Axes and sledge hammers are routinely used, and used throughout his 31 year career. In 1989 he worked five years… roughly averaging 12 to 15 times per month… calls involved between one and three hours of pulling and manoeuvring 1 ½ and 3” diameter water hoses , weighing between 125 and 300 pounds respectively. A large diameter rubber lined hose, when wet, requires a forceful grip while tugging and lifting constantly. Additionally there are regular drill sessions, actively using hoses, 20% of the time, by his estimation. He also described in some detail, the extent of wrist and hand forces required in other duties on special search and rescue teams involving a lot of crawling on his hands and knees with extended wrists and, auto extrication using cutting tools and hydraulic machinery. In general, the job demands and requires extensive gripping and forces across the wrist in all positions and for prolonged periods of time on many occasions.”

On June 4, 2007, it was determined by the WCB adjudicator that no change would be made to the decision to deny responsibility for the worker’s claim. After reviewing the information submitted by the worker’s union representative, the adjudicator confirmed her position that the worker’s job duties were not performed on a repetitive and regular basis (i.e. his work duties and requirements vary, depending on the calls he is assigned to during a particular day).

On July 17, 2007, an advocate for the worker provided Review Office with a submission to support the view that the worker’s claim for compensation should be accepted and that he was entitled to wage loss and/or medical aid benefits. The advocate’s submission suggested that the WCB did not properly assess the worker’s job demands and outlined concerns over the medical literature that WCB adjudicative staff relied upon when determining the role, or lack thereof, of known occupational and non occupational risk factors.

On August 5, 2007, Review Office asked primary adjudication to conduct a further investigation prior to its involvement on the claim. In particular, primary adjudication was asked to review the advocate’s submission of July 17, 2007 and to obtain specific information relative to the worker’s job duties, frequency of same, etc. as well as specifics concerning the physical fitness activities performed by the worker.

Subsequent file material includes the following information:

· a list of the day to day activities carried out in the worker’s profession;

· information entitled “General Outline of Physical Fitness Activities”; and

· training and drill records.

By letter dated October 31, 2007, a WCB adjudicator determined that no change would be made to the decision of September 8, 2006 following review of the above information. It was maintained that although the worker may participate in forceful activities, these activities were not performed on a sustained repetitive basis and that the mechanism of injury reported did not satisfy the worker’s symptoms and diagnosis.

On January 3, 2008, the worker’s advocate provided Review Office with a second submission that contained additional information pertaining to the development of CTS, the associated risk factors and the worker’s job duties, training programs, etc. On January 14, 2008, Review Office directed that primary adjudication consider the new information submitted by the worker’s advocate.

In a letter dated March 20, 2008, primary adjudication outlined its position that it could not accept responsibility for the worker’s bilateral CTS as being caused by his work duties. It was stated that the worker related his CTS condition to his job duties as a whole but in particular, to his use of axes, sledgehammers and pulling hoses. The worker stated that his duties varied throughout his shift depending on the calls he received. Given the variation in the work duties, the adjudicator was of the opinion that the worker’s forceful work demands were not performed at a frequency sufficient to cause bilateral CTS. It was noted that the worker reported that his symptoms became worse in 2006, however, he had been in his new position for three years. The adjudicator also considered the worker’s employment in the meat packing industry from 1970 to 1975. As the worker’s symptoms occurred in 1997 which was 22 years after his employment in this industry, the adjudicator was of the opinion that there was insufficient evidence to suggest these job duties contributed to his current condition.

On May 7, 2008 Review Office confirmed that the worker’s claim for compensation was not acceptable. In the opinion of Review Office, the worker’s job duties were not repetitive in nature and they varied in nature depending on the particular work site and calls that were received. Review Office noted that the duties of using an axe and sledgehammer and carrying hoses were performed approximately twice per month at the worker’s current work site. It felt that the job duties the worker performed in the meat packing industry were not relevant to the claim as the onset of the worker’s symptoms occurred 22 years after he left that particular employment. On May 21, 2008, the worker’s advocate appealed the decision to the Appeal Commission and a hearing was arranged. On August 14 and 19, 2008, the advocate provided the Appeal Commission with additional information for consideration.

An oral hearing took place on August 26, 2008. During the hearing, the worker took the opportunity to advise the Panel of his extensive and varied experience in the workforce over many years. He detailed his duties at high volume as well as at relatively low volume geographical areas and his training and experience in a variety of specialized duties.

The worker’s representative warned of placing excessive reliance on epidemiological studies and noted that the key issue was the relationship between the individual worker’s experience and the workplace factors to which CTS has been attributed. She identified key factors in the workplace which were associated with Carpal Tunnel Syndrome including repetition, force, pushing and pulling, grasping and weather. Through examination and argument, she sought to relate the worker’s job duties to the factors which have been identified as potential causal factors. She also made reference to the letter of the occupational health physician as expressed in his letter of October 26, 2006.

The employer’s representative engaged in a discussion of the worker’s activities and took the position that the worker had only limited exposure to known risk factors. In his submission, while the worker was, from time to time, engaged in forceful activities, the missing link in the worker’s activities was repetition.

The employer’s representative noted that the worker sought no attention for his wrist problem from September 2001 to June 2003 despite being stationed at one of the busiest stations in terms of volume. By contrast, he observed the worker appeared to have a worsening in his symptoms while he was acting as a captain and assigned to stations that were relatively light in call volume. He also called attention to the fact that to date there were no epidemiological studies linking the duties of the worker’s profession or occupation specific with the development of CTS.

Reasons

The worker had a rich and varied career. At the times in issue, he undertook a number of tasks. He performed administrative functions; he trained for a variety of specialized duties; he kept himself fit through a training regime and he performed an assortment of physically demanding duties. Based on a balance of probabilities, the varied and relatively low repetition nature of his duties does not accord with the association of CTS with forceful and repetitive tasks. Given these factual findings, the Panel does not accept the views of the occupational health physician as expressed in his letter of October 26, 2006.

In this regard, the Panel also finds, based upon a balance of probabilities, that the worsening of the worker’s CTS symptoms in 2006 took place during a time where he worked at a less busy station while performing duties that were somewhat more administrative than previous given his promotion. The timing of the onset of his worsened symptoms and the onset of the condition bilaterally are inconsistent with the argument that high volume repetitive activities in the workplace were causally related to his injury.

Conclusion

Based on a balance of probabilities, the panel finds that the worker’s injuries did not stem from an accident arising out of and in the course of his employment.

The appeal is dismissed.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 22nd day of October, 2008