Decision #96/09 - Type: Workers Compensation
Preamble
The worker is presently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that her diagnosed bilateral carpal tunnel syndrome was not related to her work duties as a registered nurse. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through her union representative. A hearing was held on August 25, 2009 to consider the matter.Issue
Whether the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On April 2, 2007, the worker filed a claim with the WCB for difficulties she was experiencing with both wrists which she related to her job duties as a registered nurse at a rural hospital. The worker recorded the date of accident as being June 15, 2006 and reported it to her employer on March 1, 2007.
On April 18, 2007, the worker spoke with a WCB adjudicator. The worker indicated that she had been employed with her present employer since 2005 and has been a nurse for 24 years. She was initially hired for a 0.6 part time position but had recently been working more regular hours. She worked 8 hours per shift. Prior to her current employment, the worker worked in research for one year and had worked with different hospitals and in orthopaedics during her nursing career. The worker said she used both hands while performing her work duties. There were 15 patients in-house and she was responsible for whoever came through the emergency room.
The worker related her symptoms to the repetitive nature of her job duties which involved popping pill bottles, doing IV injections, transferring, turning and lifting patients and administering medication.
The worker noted that two people are required for turning patients every two hours. They use a draw sheet to help turn the patient and grasped with both hands. She said you try to lift the patient with the draw sheet rather than pull the patient with the draw sheet.
When dispensing medication, the worker noted that many patients require their medication to be crushed and she used her right hand for manually crushing the medication. When giving IV medication, the IV medication required mixing. This included taking the medications out of a vial, popping the lid, getting the proper concentrations of saline or water, mixing it and flushing the tubing. This process took approximately 10 minutes. The worker also indicated that she performed other duties such as dressing changes, washing patients and fixing pump machines. She used a calculator to calculate medication dosages and used a computer to do admission chart sheets at nights or on the weekends when a clerk was not available.
On April 23, 2007, a WCB adjudicator spoke with an employer representative regarding the job duties performed by the worker. The employer representative stated that not all of the in-house patients require turning at night every two hours, and estimated that approximately 5 patients required this. The representative confirmed that the worker would process patient admissions when the ward clerk was not there. When asked whether she had any concerns about the claim, the employer representative noted that the worker had not been there for too long and before this employment, the worker had been working in research. They were short staffed and the employer was concerned if the worker was off work due to surgery.
Medical information confirmed the diagnosis as bilateral carpal tunnel syndrome (“CTS”).
The worker advised her WCB adjudicator on April 30, 2007 that prior to her current position, she did one year of research which included drawing blood, doing EKGs, writing documentation and computer work.
On May 17, 2007, the worker was advised that her claim for compensation was not acceptable as the adjudicator was unable to establish a relationship between her job duties and CTS condition. In making her decision, the adjudicator noted that the worker’s job duties did not involve highly repetitive hand/finger or wrist movements; the turning of patients would put more force on the arms and shoulders than to the wrists and did not involve flexion movements of the fingers or wrists; the worker was not constrained by the use of a specific machine or position that forced her to maintain any specific position for a length of time.
On July 3, 2008, a union representative appealed the adjudicator’s decision to Review Office. The union representative outlined the opinion that even though the worker had a variety in tasks, it was easy to establish that the wrist and hand movements were repetitive in nature given the amount of overtime worked and the lack of recovery time on days off. She noted the worker first experienced her symptoms in the course of her employment arising out of the physical demands of her position and therefore the WCB should accept the worker’s claim for bilateral CTS. The union representative referred to a medical report dated April 12, 2007 to support the position that the worker’s CTS condition was work related.
In a decision dated July 15, 2008, Review Office confirmed that the claim for compensation was not acceptable. Review Office noted that the worker had several risk factors for the development of CTS. It noted that the job duties described by the union representative on July 3, 2008 did not involve any degree of high force and high repetition. The duties did not involve long stretches of any specific activity for sustained periods. The job duties were varied and there was no constant repetition. Review Office concluded that the worker had not sustained personal injury by an accident arising out of and in the course of her employment. On March 30, 2009, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (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 carpal tunnel syndrome (“CTS”) arose out of and in the course of her employment.
Worker’s position
The worker was assisted by a union representative at the hearing. The position advanced on behalf of the worker was that she suffered an aggravation of her bilateral CTS as a result of completing her tasks as a registered nurse. When she assumed the 0.6 permanent evening position with the accident employer in April 2005, her sedentary work in a research position suddenly changed to a physically demanding nursing position. It was conceded that the worker had some non-work related factors which may have predisposed her to the development of CTS, but after she changed positions, she was no longer able to manage the symptoms. Two physicians had identified tasks that would aggravate the underlying condition to the point of requiring surgery. In the circumstances, it was submitted that the evidence shows that the worker sustained an accident related to her duties as a nurse and the WCB should accept responsibility for her claim.
Employer’s Position
An advocate appeared at the hearing on behalf of the employer. The employer’s approach to the appeal was, in its advocate’s words, “fairly neutral”. The employer did not disagree with the WCB’s decision, but having said that, it admitted that it was a difficult case to determine whether or not the CTS was work related. It was noted that the evidence indicates that there were definitely some non-occupational risk factors present and probably contributory causes that were non-occupational. The employer’s biggest concern was the worker’s delay in reporting and the delay in letting the employer know that she was having problems that she perceived to be work related.
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 is causally related to her work duties. At the hearing, the worker did not claim that the bilateral CTS was caused by her employment, but rather her position was that her work duties aggravated a pre-existing bilateral CTS condition. Based on the evidence before us, the panel accepts that the worker’s bilateral CTS was aggravated by her work duties and therefore her claim is acceptable.
At the hearing, the worker acknowledged that she had experienced numbness and tingling in her hands prior to commencing employment with the accident employer in 2005. It was not disputed that she had a pre-existing condition, which may have been caused by previous employment or by non-work related risk factors. The symptoms, however, were quite minor and she was hardly even aware that the condition existed in her left hand. Within six months after commencing the heavier physical duties with the accident employer, the worker started to have more noticeable symptoms in her hands. By June 2006, the condition became sufficiently troublesome so that she reported her symptoms to her general practitioner and nerve conduction studies subsequently confirmed the diagnosis of bilateral CTS.
The worker’s job duties were described in great detail at the hearing. The panel observed that although there was considerable variety in the types of duties being done by the worker during the course of a shift, a significant number of the tasks being performed by her involved flexion/extension of the wrist and forceful gripping. In particular, the worker’s evidence was that repositioning patients took up a substantial part of her work day and in order to do this task, she would have to gather up turning sheets and grasp them with her hands while pulling the dead weight of a patient. Several of the patients were bariatric and could weigh over 300 pounds. Although a musculoskeletal injury prevention program has now been instituted and ergonomic equipment supplied by the accident employer, this equipment was not available in 2005 when the worker first noticed the significant worsening of her symptoms. Other frequently performed tasks which involved forceful grip strength and awkward positioning of the wrists include the manual cranking of beds and lifts, putting compression stockings on patients, using a 20 cc syringe (60-80 psi) to irrigate wounds, and holding open wounds/anatomy for extended, sustained periods of time (up to 20 minutes) to allow treatment to be administered.
With respect to the employer’s concerns regarding delay in reporting, the panel feels that the delay was adequately explained by the worker at the hearing. The worker’s evidence was that she wanted a confirmed diagnosis and an opinion on how it may be related to her work before reporting to her employer, based on her past experiences in raising issues at the workplace. The panel accepts this explanation as being reasonable.
Overall, the panel accepts that the duties being performed by the worker involved the degree of repetition, force, and awkward positioning which is often associated with the development of CTS. We find on a balance of probabilities that the worker’s pre-existing CTS was aggravated and enhanced by her work duties such that surgery was required and therefore her claim for bilateral CTS should be accepted. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 7th day of October, 2009