Decision #160/08 - Type: Workers Compensation

Preamble

On February 17, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for numbness and tingling in both hands and sharp pain down her middle finger which she related to her job duties. On May 10, 2004 and August 16, 2007, the worker’s claim for compensation was denied by primary adjudication as it was unable to establish a relationship between the worker’s diagnosed condition and an accident arising out of and in the course of her employment. The decision was confirmed by Review Office on December 13, 2007. The worker disagreed and an appeal was filed with the Appeal Commission through her union representative and a hearing was held on October 30, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

As noted in the preamble, the worker filed a claim with the WCB for tingling and numbness in both hands as well as a sharp pain in her middle finger. The worker stated that she first began to notice symptoms in April of 2003 which she attributed to her job duties which entailed sorting and delivering mail.

On January 30, 2004, the accident employer advised the WCB that the worker was employed full time and had performed the same duties for the last 15 years. When reporting, the worker did not make an account of anything unusual or a specific accident or trauma. The employer stated that non-occupational factors must be considered and did not feel that risk factors for a repetitive strain injury were present.

Medical information was obtained from the treating physician which showed that the worker sought treatment on February 5, 2004 for numbness in her fingers, especially when gripping. The diagnosis was paraesthesia of the second and third fingers. On March 26, 2004, nerve conduction studies revealed evidence of severe bilateral carpal tunnel syndrome.

On March 26, 2004, a WCB adjudicator contacted the worker to obtain additional information surrounding her job duties, the onset of her symptoms, medical treatment, etc.

On May 10, 2004, the worker was advised that the WCB was unable to accept responsibility for her bilateral wrist difficulties. The WCB adjudicator noted that although the worker’s job duties were repetitive, they did not involve high repetition and force, or any mechanical stresses or altered wrist flexion/extensions that are usually associated with carpal tunnel syndrome.

In July 2007, additional information was submitted to the WCB by the worker’s union representative which consisted of a video tape of the worker’s work duties along with a written statement. On August 16, 2007, the worker was advised that after reviewing the additional information, the WCB was unable to establish a relationship between the development of her bilateral wrist difficulties and her work duties. The adjudicator noted that although the worker’s work duties involved some repetition and some left wrist flexion, she could not identify any work duties requiring highly forceful repetitive activities involving twisting, gripping, pulling, pinch pressure or repetitive flexion/extension of both wrists. On October 16, 2007, the union representative appealed the decision to Review Office.

In a decision dated December 13, 2007, Review Office indicated that it reviewed all available evidence and felt that on a balance of probabilities, the worker’s job duties, while being repetitive, did not involve the high hand force and awkward hand positions necessary to produce bilateral carpal tunnel syndrome. Given the distinct differences in the worker’s right and left hand work requirements, it believed the bilateral nature of her complaints further supported a non-work related cause for her bilateral carpal tunnel syndrome. As a result, the worker’s appeal was denied.

In a further submission dated April 25, 2008, the union representative asked Review Office to address whether the worker’s claim was acceptable as an aggravation or enhancement of a pre-existing condition.

In a letter dated May 1, 2008, Review Office stated it was unable to accept the union representative’s assertion that the worker’s employment duties either aggravated or enhanced her bilateral carpal tunnel syndrome. Review Office indicated that the information provided by the worker to the WCB on March 26, 2004 indicated that she had experienced symptoms off and on over the last three to four years, even though she continued to work at her job without any symptoms. In the opinion of Review Office, this evidence would not establish any direct relationship between the worker’s symptomatology and her work duties, given that her symptoms were variable while continuing to work at her job. On June 23, 2008, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.” WCB policy 44.05.10, Definition of ‘Accident’ under the GECA, clarifies that this will be interpreted to mean personal injury by accident and that the gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion will be considered an accident.

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).

The key issue to be determined by the panel deals with causation and whether the worker’s bilateral carpal tunnel condition arose out of and in the course of her employment.

Worker’s Position

The worker was represented by a union representative who made a presentation on her behalf.

The worker’s representative noted there is a general consensus that repetitive motion of the hand or wrist against force, as well as hyperextension of the wrist, are capable of causing carpal tunnel syndrome. He referred to the work of a leading researcher in the field of carpal tunnel syndrome. He reviewed the worker’s job duties and concluded that these duties fall into the category of high repetition and moderate to high force and occupy more than 50% of the worker’s work day. He disagreed with the opinion of the employer’s physiotherapist.

The representative submitted that the worker’s job duties caused her carpal tunnel syndrome. Alternatively he submitted that the job duties were sufficiently repetitive and forceful to cause carpal tunnel syndrome in an individual who was predisposed to developing it. He also noted there is a possibility that the worker had an actual pre-existing condition which was asymptomatic and which was aggravated or enhanced by the job duties.

The worker answered questions regarding her job duties and her mail route. Her route is approximately 11 miles long. It includes apartment blocks, commercial properties and individual residences.

The worker confirmed that her symptoms commenced at the same time and initially involved waking up at night. She advised that she had surgery on her left wrist approximately three years ago. She attributed her right wrist condition to holding the mail in her hand all the time, bending of the wrist to get the mail out of her bag, pulling mail out of a case. Regarding job duties that she thought caused her left wrist problem she said bending of the wrist with the high panels in certain apartment blocks on her route. Her representative noted that she also uses her left hand to hold the mail when she is sorting it in the morning. He said that:

“So over the course of the day, she’s using them roughly equivalently. The right hand is being used less than the left in terms of the repetitive work, but it’s grasping bundles for a longer period of time. Over the course of the day she’s using both hands, you know, roughly equivalently, not at the same times, but for the same, roughly the same periods of time.”

Employer’s Position

The employer was represented by its WCB specialist who made a presentation on the employer’s behalf.

The employer representative submitted that the evidence on file confirms that the duties associated with letter carrier work are not considered high in frequency, nor do they involve high force. She said the employer believes there is enough variety in the job that the worker is not performing repeated work tasks for greater than 50% of the day. She also noted that the worker’s condition is bilateral which supports a non-occupational cause. The representative relied upon the opinion of a physiotherapist.

Analysis

The issue before the panel is whether the worker’s claim is acceptable. To accept the worker’s appeal, we must find on a balance of probabilities that the worker’s bilateral carpal tunnel condition was caused by her employment. The panel was not able to make that finding.

The panel has carefully considered the worker’s job duties as described in the file, shown in the video provided by the worker, and described and demonstrated at the hearing. The panel finds, on a balance of probabilities, that the worker’s job does not involve high force and high repetition or awkward placement of the wrists generally associated with the cause of carpal tunnel syndrome. Nor does it find that the worker’s job duties are sufficient to cause an aggravation or enhancement of a pre-existing carpal tunnel condition.

While the worker’s job duties involve repetition, the panel finds that the repetition is not continuous. The video provided by the worker showed the awkward positioning of the wrist in placing mail in certain apartment mailboxes. This involved a very small portion of her overall duties and was not a sustained, continuous activity. The worker referenced the use of her left hand in sorting the mail in the morning. This activity lasted approximately one hour. The panel finds that the worker’s duties are varied and are spread over a six hour day and a mail route of approximately 11 miles.

The panel notes that the worker’s carpal tunnel syndrome is bilateral which is frequently an indication of a non-work related condition. This is significant because there is little repetition involving the left hand that could account for the worker’s left handed symptoms. As well the symptoms are reported to have commenced simultaneously and with no significant change in duties. The panel finds, on a balance of probabilities, that the worker’s job duties have not caused or aggravated her bilateral carpal tunnel syndrome and that the claim is not acceptable.

The worker’s appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 11th day of December, 2008

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