Decision #12/09 - Type: Workers Compensation

Preamble

This appeal deals with a decision that was made by Review Office of the Workers Compensation Board (WCB) which determined that the worker’s job duties as a waitress were not causative in the development of her diagnosed condition of bilateral carpal tunnel syndrome. A hearing was held on December 3, 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 reported to the WCB’s call centre that she sustained injuries to both her hands and wrists with an accident date of March 1, 2006. The worker described her difficulties as follows:

“I carry trays and plates in the restaurant. I have been doing this for 12 years. I have numbness and pain in my hands and wrists, but my left is worse. I saw [doctor] in January 2006. He sent me for a nerve conductive test in March 2006 at [local hospital], I was then referred to [doctor] at [clinic] on June 21, 2007. He stated that I need surgery in both hands, diagnosed me as having carpal tunnel syndrome, and that it is work related, and to let him know if I apply at WCB. Surgery is booked 10/08/2007, but I would like to have surgery moved up sooner.”

The worker believed that her injury was caused by the way she held her wrist when carrying plates and coffee pots. Her wrist had to be flexed/bent. She used both wrists, and the trays were sometimes heavy. The worker acknowledged that she later took a leave of absence from her employer, to help out in a smaller restaurant opened by her daughter, partially because of her hand/wrist problems.

The accident employer advised the WCB that the worker had been in their employ since November 1994. In September 2006, the worker requested a sabbatical of six months to assist her daughter with a newly purchased restaurant. On May 5, 2007, the worker returned to work on a part time basis requesting Saturday shifts only. On June 9, 2007, the worker advised the employer of her upcoming surgery. At no time prior to this date was the employer aware of any documented doctor appointments or injuries related to the surgery or discussions of wrist problems with any management personnel.

On June 29, 2007, a WCB adjudicator contacted the worker to obtain additional information concerning her employment history, the onset of her symptoms and medical treatment. The worker attributed her condition to her job activities with the accident employer and with another employer with whom she worked between December 1981 and November 1994. With regard to her specific job duties, the worker stated the following:

  • She used trays to carry plates. She holds trays mainly with her right hand but carried coffee pots and other items with her left hand.
  • She used her left hand to lift everything off the tray and to serve items. She flexes her wrist whenever she took items off a tray.
  • Her duties were very repetitive for the whole 8 hours of her shift.
  • The coffee pot was quite heavy when full. The trays were also heavy depending on the number of customers being served. She placed orders for several people onto one tray.
  • When pouring coffee, her wrist was at an angular position. There was sustained awkward positioning when carrying dishes to and from the table and then back to the kitchen.
  • Regarding the use of vibratory tools, the worker used a carpet sweeper at least once a day for 10 minutes and she alternated with both hands.
  • There was prolonged pressure from carrying trays because the trays were very large and it covered her whole hand.
  • There was excessive grasping and gripping when picking up plates; pinching depending on how plates were positioned. She pinched to pick up plates and grasped to put them down.

On July 20, 2007, the worker was advised that her claim for compensation was denied as the WCB was unable to identify an exposure to significant work related risk factors which contributed to the development of her carpal tunnel syndrome. The decision indicated that the worker’s job duties did not involve highly forceful activities, although her work was repetitive. Her symptoms had been present before she started working with the accident employer. It was indicated that several non work related factors had been identified which could have led to the development of her condition.

In a November 13, 2007 submission, a worker advisor asked the WCB to reconsider its decision to deny the worker’s claim. She noted that a full job description was submitted to a specialist who provided the opinion that “I think that this kind of activity would aggravate or cause carpal tunnel syndrome”. Based on this new medical evidence, the worker advisor asked that the worker be provided with compensation benefits.

On November 29, 2007, the WCB case manager determined that no change would be made to the original decision. She stated that the worker’s ongoing symptoms were the result of her pre-existing condition which was not a compensable condition. She stated the worker’s job duties do not involve motions that are highly repetitive and with high force to cause significant compression of the median nerve.

In a submission dated December 11, 2007, to the Review Office, the worker advisor advised that the WCB has accepted cases of CTS under WCB policy 44.10.20.10 when the work duties have, on a balance of probabilities, caused an aggravation to the underlying condition of CTS. It was her position that the work duties of a waitress, on a balance of probabilities, have risk factors that are causal to the development of CTS. The worker advisor also referred to the specialist’s medical opinion that the worker’s job duties would aggravate or cause CTS.

On January 9, 2008, Review Office referred the case back to primary adjudication to consider the new argument that was submitted by the worker advisor in her submission of December 11, 2007 and to obtain specific additional information. Review Office asked primary adjudication to determine whether the worker’s claim was acceptable for a specific accident or whether the claim was acceptable as an “aggravation” of a pre-existing condition.

On May 2, 2008, a WCB adjudicator stated that she could not accept responsibility for the worker’s claim on the basis of a cause and aggravation effect. In her opinion, the worker’s current and ongoing problem was the result of an underlying pre-existing condition, the progression of which was not enhanced or accelerated by her work activities as a waitress. In reaching her decision, the adjudicator considered the findings of a worksite visit that was carried out by a WCB rehabilitation specialist in March 2008, the worker’s employment history, the onset of her symptoms as well as non-work related factors.

In a submission to Review Office dated June 5, 2008, the worker advisor continued to advance the argument that the worker’s work duties contributed to her CTS condition. She stated the worker’s work duties eventually caused the need for surgery for her carpal tunnel and that this satisfied the definition of enhancement under the WCB’s pre-existing policy.

On July 3, 2008, Review Office confirmed the decision that the worker’s claim was not acceptable based on the following factors:

  • Review Office noted that the worker worked for a different employer as a waitress from December 1981 to November 1994, however the WCB was unable to confirm the worker’s job duties or the frequency of the tasks she performed with this employer. As such, it was unable to establish that the worker’s duties performed during this time contributed to a diagnosis of CTS.
  • Review Office noted that the worker had several risk factors for the development of CTS which included her gender, age and weight and low vitamin B12 from a neurological point of view.
  • Based on the results of the worksite assessment, Review Office concluded that the worker’s activities as a waitress, although repetitive at times, was not constant and sustained nor did they involve any degree of high repetition or high force.
  • Because the worker’s CTS condition was bilateral, it suggested to Review Office that the worker’s employment was not the cause of her CTS.
  • Review Office was unable to establish that the worker had aggravated a pre-existing condition of CTS as a result of her work activities.
  • It was unable to find any medical evidence that the worker had CTS during her employment tenure prior to 1994.

    • On September 3, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

Subsections 1(1) and 4(1) of The Workers Compensation Act (the Act) set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of his employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

Worker’s evidence and argument:

The worker’s advocate argues that the worker’s job duties are sufficient to cause the development of CTS in each of her hands. In the alternative, she argues that the worker had a pre-existing bilateral CTS condition which was aggravated or enhanced by the job duties performed by the worker with the accident employer. In this regard, she notes that the worker had first experienced CTS symptoms some 18 years earlier, and more recently, experienced a significant increase in symptoms while she was working with the employer, with a positive nerve conduction study that demonstrated the presence of CTS (left worse than right).

The worker provided evidence at the hearing as to how she performed her job duties as a waitress at a hotel restaurant. Some of the evidence dealt with comparisons between a worksite assessment done by a WCB occupational therapist on March 28, 2008 (where the worker was not present) and how she actually did some of the job duties. She noted in particular that she carried the tray on the palm of her right hand, which meant that her right wrist was bent back. These trays were used to bring a maximum of six plates a time (and many times less) from the kitchen to customer tables, and to bring empty plates, cups, cutlery, and glasses back to the kitchen on her return trips. As for her left (dominant) hand, she advised that she used her left hand to carry coffee pots, pour coffee, take plates off the tray and to pick them back up again.

The worker advised that her wrist problems started in 1988 when she worked at another restaurant. The problems started with her left hand but were soon present in both hands. She advises that she had a nerve conduction test at that time, and the results came back as borderline. She received no further treatment for her hands or wrists. The worker started to work with the accident employer in 1994, at which time she had mild symptoms. Her symptoms started to increase in the early 2000s, and the problem got much worse in 2004 and on, particularly on waking in the mornings. Both hands were symptomatic. There was no change in her job duties or hours worked. She did not complain to her superiors at any time about her wrist problems. The worker advised that she had a left CTS surgery on July 31, 2007, as her left was more symptomatic than her right. Right CTS surgery is pending the result of this appeal.

Analysis

As noted in the legislation, for the worker to succeed on her appeal, the panel would have to find that her bilateral CTS condition was caused by her job duties as a waitress with the accident employer. More particularly, the panel would have to find, separately, that her right wrist and her left wrist were each exposed to job duties that could have led to the development of CTS in each of her wrists. The panel was not able to reach this conclusion on a balance of probabilities, based on the analysis that follows.

CTS is a unique medical condition that can arise from work-related activities, and also from non-work related factors. Medical literature points to such factors as age (40s and up), gender (female), body mass index, diabetes, and hypothyroidism amongst others, as factors leading to the development of CTS in the general population. Many CTS cases are idiopathic in origin (that is, they have no known cause), with some literature suggesting that up to 50% may fall into this category.

Where work duties are suggested to be the source of the problem, there is considerable medical literature focusing on the specific types and frequencies of body mechanics that could lead to the development of CTS. It does not simply arise out of general physical work. The factors most commonly cited as leading to the development of CTS are high force/high repetition activities involving the hands or activities involved with awkward bending of the wrist or forceful pinching and gripping, or direct pressure on the carpal tunnel area of the palm or wrist. Of decreasing causal significance are high force/low repetition activities of the hands, followed by low force/high repetition activities.

It is clear from the medical literature that CTS cases are considered to be “acute” events with an accumulation of micro-traumas over time. This is in contrast to an occupational disease where claims may be established by demonstrating significant increases in the prevalence of a particular disease in a specific workforce in a specific industry in comparison to a general population. As such, it is critical that the analysis of CTS claims be made on a case-by-case basis. This requires an examination of what specific job duties a worker is performing, and how (and how often) the worker performed them. These are then compared to the occupational hazards typically associated with the development of CTS.

In cases such as this one, where a worker presents with a bilateral CTS condition, the panel notes that this is not a common phenomenon in terms of work-related causation. The bilateral onset of the condition is strongly suggestive of a systemic non-work-related source, but it can nonetheless arise from work, if the evidence shows that both hands and wrists were each exposed to the types of occupational hazards that could lead to the development of CTS in each hand.

Dealing with the worker’s job duties, the panel finds that they are not causative of her bilateral CTS condition. The panel notes that the worker’s CTS condition progressed in parallel (both right and left) over the years. To determine if we can tie this parallel progression to her job duties (rather than to non-work factors), we have assessed the worker’s respective left and right hand job duties.

In assessing the worker’s left hand duties, the panel noted that the job duties described by the worker simply did not have the characteristics associated with the development of CTS. In particular, the worker’s evidence is that she carried a coffee pot for a substantial portion of the day in her left hand, to fill or refill customers’ coffees. The panel notes, however, that in the worker’s demonstration of how she carried the carafe, her wrist was in a neutral position. The weight of the carafe would also decrease as its contents were poured out. The other left hand activities – removing plates from the trays, and reloading dirty plates cups and cutlery – involve low weights and non-extreme wrist positions, and are performed in small batches over the course of the day, with rest cycles between her varied tasks. The panel therefore finds on a balance of probabilities that the worker’s job duties were not causative of her left hand CTS condition. In assessing the worker’s right hand duties, the panel notes that the worker’s use of the tray does involve extension of the wrist, but did not involve enough weight or continuity over time to lead to the development of the right CTS condition. It is the panel’s view that the increase in right hand symptomology was, instead, tracking with the worker’s increasing symptomology. While the worker was experiencing increased symptoms during her workday, this was part of her overall condition and not caused or aggravated by her job duties.

As to the worker’s argument that there was a pre-existing CTS condition in either or both wrist that was aggravated or enhanced, the panel notes that the worker has had varying symptoms over the years which manifested at home as well as at work. The worker essentially worked in the same job from 1994 to 2007 (with the exception of a leave of absence in 2006), with no noted changes in job duties or hours, and also had these same symptoms as far back as 1988. The worker first reported these symptoms to her employer after she had returned to the employer from a leave of absence and was in fact only working on a part time basis. This was at the time when the worker was considering surgery. The panel finds that this course of events is not consistent with a finding of an aggravation or enhancement of a pre-existing condition. Rather, it is consistent with the natural progression of a non-work-related condition (or a pre-existing condition, within the terminology of the Act and WCB policies). As noted from the earlier analysis, the evidence regarding the worker’s job duties or other factors such as changes in job duties does not support a finding of an aggravation or an enhancement of a pre-existing condition from her job duties.

Although it is not necessary to establish an alternative source for the worker’s medical condition, the panel would again note that the simultaneous development of a bilateral CTS condition strongly suggests a non-compensable, non-work-related source. There are also a number of other general factors leading to CTS as noted above, that are present in this case, in particular age, gender, body mass index, and B12 deficiencies.

Based on this analysis, the panel finds, on a balance of probabilities, that the worker’s job duties were not causative of her development of bilateral carpal tunnel syndrome. Accordingly, the definition of a workplace accident under the Act has not been established. The worker’s appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 16th day of January, 2009

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