Decision #28/10 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for problems she was experiencing in both hands that she related to her work duties as a porter. The worker’s claim for compensation was denied by primary adjudication and Review Office as both were unable to establish that the worker suffered personal injury by accident arising out of and in the course of her employment. A hearing was held on February 9, 2010 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB for pain, numbness and tingling in both hands, wrists and arms that she related to her work duties as a porter starting June 18, 2008. The worker reported the injury to her employer on June 23, 2008. When seen for medical treatment on June 23, 2008, the worker was diagnosed with carpal tunnel syndrome (“CTS”).
The Employer’s Accident Report confirmed that the worker reported an injury on June 23, 2008. The employer stated,
“Employee was claiming of symptoms from a pre-existing medical condition of carpal tunnel syndrome diagnosed 3 or more years ago. Employee states condition was aggravated last week when she was working short. When a porter works short, duties are taken away from them, such as operating a polisher and vacuuming therefore eliminating stressors. Employee was on holidays 2 weeks prior to returning to work for 4 days.”
On July 3, 2008, a WCB adjudicator contacted the worker to gather additional information in order to adjudicate the claim. The worker stated that her job duties as a porter involved vacuuming, laundry and garbage pick-up and using an autoscrubber. The worker indicated that she worked short-handed between June 18 and June 20, 2008. This meant it took 2 hours for each pick up. The worker confirmed the information that was provided by her employer on the Employer’s Accident Report. The worker added, however, that her supervisor had paged her to do extra things on June 18 and June 20, 2008.
With regard to the onset of symptoms, the worker advised that she noticed tingling and numbness in both arms on June 19, 2008. The pain started in her wrists and fingers and went up to her biceps. The symptoms did not go away at night and she tried rubbing them. They stayed numb all weekend even though she was not working.
On either June 19, 2008 or June 20, 2008, the worker mentioned to her supervisor that her arms were sore, tingling and numb. She did not mention any cause and the supervisor did not ask anything at the time. On June 20, 2008, she called work because her arms hurt and were numb. She related her difficulties to being short the 3 shifts prior. The worker advised that when she went to fill out the paperwork for WCB on June 30, 2008, the supervisor told her not to bother as she may have done this at home and had no proof that it was work-related. She then got the union involved and was told to report directly to the WCB which she did.
The worker stated that she delayed in reporting the accident to her employer as she thought it would resolve itself over the weekend.
The worker confirmed that she was on holidays from May 31 to June 16, 2008 prior to returning to work for 4 days (on June 17, 2008 she had full staff with her). While on vacation, she went to the lake and did some planting. She denied moving any rock at home and there was a pile still sitting there. She raked some gravel. They were installing an above ground pool and deck but she did not do much. The deck was still a pile of wood and she helped to unload the lumber. She had no symptoms while on holidays. The worker advised the adjudicator that she had no pain since being off work.
Information received from the employer dated July 17, 2008 stated the following:
“Change in job routine while working short:
Employee would normally be responsible for polishing floors, washing floors, vacuuming, hanging blinds and room transfers.
All of these duties are excused when working short. There are normally 2 porters on duty.
The focus is on picking up garbage and laundry throughout the day which is a normal duty function and doing so on 3 other units as well as designated units. There is also decreased vacuuming.”
On July 29, 2008, the worker was advised that the WCB was unable to establish a relationship between the development of her bilateral CTS condition and an accident as defined in subsection 1(1) of The Workers Compensation Act (the “Act”). The adjudicator noted that the nature of the worker’s job duties were not highly repetitive and did not require high repetition involving full flexion and extension. It was felt that the worker performed a variety of duties throughout the course of her shift and handled items that varied in size, shape and weight.
On October 4, 2008, the worker appealed the above decision to Review Office. The worker outlined her position that her claim for compensation should be accepted as the duties she performed at work on June 18, 19 and 20, 2008 aggravated her CTS condition to the point where she had to go off work and required surgery.
In a decision dated November 12, 2008, Review Office confirmed the decision made by primary adjudication that the claim for compensation was not acceptable. Review Office noted that the worker was diagnosed with CTS in 2005 and that nerve conduction studies performed on July 14, 2008 showed severe bilateral CTS. Review Office found that the duties performed by the worker on June 18, 2008 to June 20, 2008 would not cause her CTS condition to progress from mild to severe.
Review Office further stated that to accept responsibility for the worker’s surgery, the WCB would have to find that the work duties enhanced the worker’s condition. Review Office was of the opinion that the file evidence did not support that the progression of CTS to the point of requiring surgery was related to the job duties performed by the worker on June 18 to June 20, 2008.
In early March 2009, a worker advisor provided Review Office with a medical report dated February 9, 2009 for consideration. The worker advisor stated,
“Within the report Dr. [treating surgeon] concludes that overuse of the upper extremities can result in increased amounts of fluid and swelling to the carpal tunnel which can worsen the symptoms in her median nerve compression. Given that the claimant uses her hands and arms on a continual basis throughout the day, her symptoms are likely to get worse and it is highly likely that this is the reason why her symptoms have gone from moderate to severe.
We suggest that the logical conclusion of this opinion is that the need for operation is also compensable, given the increase in symptoms due to the workplace duties. It may also be concluded that the specific job duties performed on June 18 and 20, 2008 did not single handedly cause the increase in symptoms but her job duties in general have caused the increase in symptoms. Either way, the claimant is taking the position is (sic) that her increased CTS symptoms and the need for her surgery should be covered by the board.”
In a March 24, 2009 decision, Review Office stated that it found no new information to support that the duties performed on June 18 to June 20, 2008 were causal in the worker’s increased symptoms to the point where surgery was required. Review Office noted that because the worker used her upper extremities on a continual basis was not in and by itself sufficient evidence to support a causal relationship between the worsening of her symptoms and her work duties. Review Office found that the worker’s duties varied and did not involve high force repetitive activity involving motions of the wrist or extreme full wrist flexion/extension involving force in a repetitive motion. As the worker did not seek medical treatment between 2005 and June 23, 2008, there was no medical evidence to support the gradual worsening of her symptoms due to her work duties.
On April 15, 2009, a worker advisor appealed the above decision to the Appeal Commission and an oral hearing was arranged.
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 bilateral carpal tunnel syndrome (“CTS”) arose out of and in the course of her employment.
Worker’s position
The worker was assisted by a worker advisor at the hearing. The position advanced on behalf of the worker was that there was a relationship between the progression of the worker’s bilateral CTS and the performance of her regular employment duties over time. The worker described the job duties performed by her and it was submitted that her work involved many activities that put strain on her hands and wrists. In particular, the repetitive wringing of a mop (which involved extreme wrist flexion under force with stress to the palm), mopping, sweeping floors and utilizing machines which required a flexed wrist and exposure to vibration were identified as risk factors in the development of CTS. Medical reports from an occupational health physician and the worker’s surgeon were relied upon to state that the worker’s employment activities made her CTS worse, and it was noted that there was no medical opinion on file to the contrary. It was submitted that the worker sought medical treatment and underwent surgery because she experienced an increase in her symptoms and restrictions. The panel was asked to accept the worker’s claim on the basis that her workplace activities were the “accident” which was responsible for her injury.
Employer’s Position
Two representatives were present at the hearing on behalf of the employer. The employer did not take a position on the appeal, but was attending in order to be a resource for the panel, if required. The employer did note that at no time did the worker complain of her worsening CTS condition to her supervisor nor did she request modification of her duties.
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 condition was causally related to her work duties. We are able to make this finding.
At the hearing, the worker’s evidence was that since her CTS was diagnosed in 2005, she had experienced a gradual worsening of symptoms. She started experiencing a sharp pain in her wrists when squeezing out a mop in a wash pail wringer. To avoid this, she started using her knee, and later her foot, to operate the wringing lever. In October, 2007, she changed her job with the accident employer to a new position which she thought would be easier on her hands. For the first couple of weeks, her hands felt better with her new job duties. Later, unfortunately, her condition became the same and the symptoms continued to worsen.
The worker’s job duties were described in great detail at the hearing. When her shift began, she would start by doing some light vacuuming. She would then be responsible for collecting laundry for half of the wards. This involved lifting bags, which could weigh up to 30 lbs (although the employer asserted the bags weighed in the range of 10 – 12 lbs). The laundry bags would be placed in a cart, and when the cart was nearing capacity, she would have to lift the bags high to get them over the top of the cart. This work was hard on her hands. The worker was also required to collect and empty garbage cans. While generally the garbage was light, some bags were heavy, particularly the kitchen garbage. The next task would be to clean the floors. This involved four main tasks. She would sweep the floors using a large dry dust mop. She would then wash the floors by either using an autoscrubber machine or by using a string mop and wash pail. The autoscrubber was used by her 2/3 of the time, and manual mopping the other 1/3 of the time. Finally, she would polish the floors using a burnishing machine. Both of the machines required the worker to apply continual pressure to an “on button” in order for the machine to operate. The burnisher had handles which required a quarter turn forward, similar to a motorcycle. The autoscrubber had a button which had to be depressed. When asked which tasks were most problematic for her, the worker identified the combination of the mop pail and the mopping.
As her symptoms worsened, the worker made modifications to the way she did her work. For the burnishing and autoscrubber machines, she would alternate the hands which she used to keep the machine running. For the sweeping, she discovered that her mop was defective, and after obtaining a new mop with a handle with less movement, she did not have to struggle with the mop anymore. For the mopping, she had previously made modifications in that she used either her knee or her foot to operate the wringer.
The worker described “getting hurt” in June 2008. She had just returned to work after a period of vacation and her hands felt good. She noted that her symptoms always improved after being away from the workplace. On her first Monday back, she performed her normal duties and things were fine. On Tuesday, they were short staffed so she had to do the laundry and garbage pick-up for the entire building. This was twice as much pick-up as she normally had to do. In addition to the extra lifting, she had to do the work at a quicker pace. On Wednesday, they were again short-staffed so she did her normal laundry pick-up, then helped in the laundry room with sorting, washing and folding. She also did some vacuuming of the front entrance and main stairwell, and helped move a resident’s belongings from one room to another. She did not do her regular floor cleaning duties that day. At this point, she was feeling increased symptoms in her hands. On Thursday, she developed numbness in her arms. She had never had numbness in her arms before. Previously, it had only been in her hands. On Friday, she also had aching pain in her arms, up to her shoulders. The symptoms did not resolve over the weekend, despite the fact that the worker relaxed the whole time. The following Monday she went to her physician who told her that her wrists were overworked and that this causes additional swelling in the carpal tunnel. He prescribed some anti-inflammatories and a topical rub, and told her to rest for 2 weeks. The worker reported that after a few days, her arms began to feel better and after a week, the numbness and aching in her arms was gone. She has never had a relapse of the arm numbness.
On August 18, 2008, carpal tunnel release surgery was performed on the worker’s left wrist. On May 20, 2009, she had the surgery on her right wrist. She has had no problems since.
After considering the worker’s job duties as a whole, the panel is satisfied on a balance of probabilities that the progression pattern of the worker’s bilateral CTS was accelerated by her work, such that surgery was required. We accept that the following job duties, over time, contributed to the worsening of the worker’s condition:
- wringing of mops which involved repetitive, forceful extension and gripping;
- operation of the burnishing machine which required the wrists to be sustained in an extended position with vibration and some degree of force; and
- gripping and lifting bags, and in particular, the performance of these duties during the three day period in June 2008, when the worker experienced swelling and numbness and aching in the entire length of her arm, which she had not experienced before.
Following the severely aggravating episode in June, 2008, the worker was sent for further nerve conduction studies which indicated that carpal tunnel release surgery was warranted bilaterally. In the circumstances, the panel finds that the worker’s pre-existing bilateral CTS condition was enhanced by her work duties, gradually over time, and acutely during the three day period in June, 2008. It is therefore the panel’s finding that her bilateral CTS was causally related to her work duties, and her claim is acceptable. 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 8th day of April, 2010