The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is currently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that her work duties would not have led to the development of her bilateral carpal tunnel syndrome ("CTS") condition. A hearing was held on June 16, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In September 2008, the worker filed a claim with the WCB for bilateral CTS. In a letter attached to her application for compensation, the worker provided the following information:

· Until February 2006, the worker said she had been working as a cargo clerk. She was then transferred to another office. Her job required her to do the cargo backup whenever the regular cargo clerk was on break or absent, and to answer phones. She also had to input bank information separately according to the bank account. The duties also involved completing a number of hand written forms.

· The worker stated she was previously diagnosed with CTS in the late 1970’s while working as a cashier. Even though she had been diagnosed with the problem, she did not have problems during the work day. She also experienced a recurrence of CTS while pregnant but, once again, it did not affect her work day.

· In July 2008, the worker noted that she began to experience numbness and occasional pain in her right hand while completing certain forms. She spent the majority of the day keying information into the computer, talking on the phone or using Excel (about 6.5 steady hours). She found that mouse use was particularly irritating to her condition. On July 9 she sent an e-mail to the director about her problem as a result of a comment from a co-worker.

· On July 22, an ergonomic assessment of her work station was conducted.

· While away on holidays, she was unable to completely relieve the numbness in her hands. When she returned from holidays, the mouse was back on her desk and her keyboard had been adjusted. She had received a gel keyboard pad but that was before she left for holidays on August 11.

· In July, prior going to away on holidays, the worker said she hand wrote 22 invoices and issued 13 penalties as well as her other duties. She had to use both hands when writing the invoices.

· At 1:00 p.m. on September 8 while at work, her fingers on the right hand were swollen and numb. She went home and rested her hands. When she awoke the next morning her fingers were only slightly numb so she went to work. By 9:30 her left arm had a shooting pain when normally it does not bother her at all. Her middle finger on the left hand looked swollen. Her right hand also felt extremely swollen and her forearm felt like there was blood pooling in it. At that point she asked her employer to help her fill out a WCB report.

When speaking with a WCB adjudicator on September 19, 2008, the worker indicated that she was relating her hand/wrist difficulties to computer work and from hand writing all day on a constant basis. The worker indicated that her wrists were at a 45 degree angle when typing on the computer. The wrists are no longer in that position since the ergonomic assessment. The worker felt that she was forcefully gripping while hand writing. There was no exposure to vibration. The worker stated that she never smoked. She had arthritis in her knee. She fractured her right hand when she was 12 years old. Hobbies included gardening, weight lifting, sewing and crocheting. She was 5’4” and weighed 148 pounds.

In a report to the family physician dated September 4, 2008, the treating neurologist noted that the worker was diagnosed with bilateral CTS at the age of 22. He noted that she had a right wrist fracture at the age of 12 which may have contributed. Over the last month, the worker experienced numbness in digits one to three more pronounced on the right side. She had been using a splint every night during this time period. The worker did a lot of weeding and gardening this summer and used her hands a lot at her job. The specialist stated that the worker had clinical and electrodiagnostic evidence of bilateral CTS which was severe on the right and bordering severe on the left. It was recommended that surgery on the right side be considered and then the left side should be considered as well.

A report from a physiotherapist dated September 9, 2009 noted that the worker had a history of bilateral hand pain and numbness. This had become progressively worse since February 2006 when her job changed and her work station was poorly arranged.

On September 25, 2008, the WCB advised the worker that her claim was not compensable. The WCB adjudicator noted that CTS was a condition that could develop from both work-related and non-work-related factors. It was the adjudicator’s opinion that a relationship between the development of the worker’s wrist difficulties and her employment had not been established.

The WCB obtained a copy of the worker’s ergonomic assessment dated July 22, 2008. In a decision dated November 12, 2008, the worker was advised that the ergonomic assessment had been reviewed and that there would be no change to the decision made on September 25, 2008.

On November 6, 2008, an occupational health physician stated that CTS was more of a disease than an injury and that the worker had problems with this for many years. He thought her recent increase in symptomatology was likely an exacerbation of her underlying condition because of the additional mouse work she was doing in her job.

On November 21, 2008, the worker advised the WCB that she used an electric pencil sharpener at work a couple times a day and it caused vibration. The adjudicator advised the worker this information would not change the decision that was already made on her claim.

The worker provided the WCB with a medical journal article dealing with CTS due to keyboarding and mouse tasks. On December 2, 2008, the WCB adjudicator advised the worker that this information did not alter the previous WCB decision.

The WCB received a May 25, 2009 submission from the Worker Advisor Office outlining the position that the evidence on file including additional medical evidence from a plastic surgeon dated May 15, 2008 supported, on a balance of probabilities, that the worker’s bilateral CTS was caused by, or at the minimum, was aggravated by her occupational duties.

In a response to the Worker Advisor Office dated May 29, 2009, the WCB adjudicator noted that the worker moved into a new position at work as of February 2006 and that her symptoms started to increase in July 2008. The adjudicator also referred to the medical report dated September 4, 2008 which indicated that the worker did a lot of weeding and gardening over the summer months in 2008. The adjudicator was of the opinion that a relationship between the development of the worker’s bilateral wrist difficulties and an aggravation “arising out of and in the course of” the employment had not been established. On June 8, 2009, the worker advisor appealed the decision to Review Office.

In a memo addressed to the short term claims supervisor dated June 29, 2009, Review Office indicated that it was premature for it to become involved in the claim at this time. Review Office indicated that additional information was required from the worker such as employment history, changes or increases in workload, the onset and duration of symptoms during work and while being off work, the doctors she attended for treatment and specific information related to her non-work-related activities. It was also suggested that a WCB rehabilitation specialist review the ergonomic assessment for an opinion as to whether the issues raised in the report would be consistent with the anatomical movements associated with development or aggravation of CTS. Review Office indicated that once the information was obtained, a new decision should be made as to whether the claim for bilateral CTS was acceptable as an injury or as an aggravation.

In a letter dated August 10, 2009, the WCB adjudicator asked the worker to respond to six questions related to her employment history, doctor treatments, symptom onset, etc. On August 19, 2009, the worker responded to the adjudicator’s request for additional information.

On September 29, 2009, the WCB adjudicator confirmed to the worker that after review of the additional information, it was felt that a relationship between the development of the worker’s wrist difficulties and work duties during the course of her employment had not been established for an injury or aggravation.

In a submission to Review Office dated October 8, 2009, a worker advisor asked for reconsideration of the decision to deny the worker’s claim. The worker advisor outlined the following points to support the compensability of the worker’s claim:

· the worker was first diagnosed with CTS in the late 1970’s but continued to work without significant difficulty;

· a job description for a position performed by the worker in 1999 confirmed that repetitive keying and wanding at a keyboard posed a risk for the development of CTS;

· the worker experienced a position change in February 2006 which increased her workload and she sought medical advice for concerns about her CTS;

· on September 15, 2008, the worker sought medical attention for an increase in CTS symptoms that began three months earlier especially at work;

· it was found that the worker’s wrists were awkwardly extended while using the keyboard and noted mechanical contact due to a lack of a palm rest which “can cause discomfort and inflammation to the soft tissues of the wrist and forearm” as noted in the July 22, 2008 ergonomic assessment;

· the September 4, 2008 medical report showing that the worker had severe CTS on the right and bordering on severe on the left. This suggested a significant progression in the severity of the condition since being diagnosed in the 1970’s;

· the opinion expressed on November 6, 2008 by an occupational health physician who stated, “her increase in symptomatology is likely an exacerbation of her underlying condition because of the additional mouse work she is doing in her job”;

· the plastic surgeon’s opinion of May 15, 2008 supported the worker’s assertion that her CTS was aggravated by her employment duties and concluded by stating “it is my feeling that her carpal tunnel problems are work related”;

· the September 9, 2009 physiotherapy opinion that stated, “[the worker] related a history of bilateral hand pain and numbness. This had become progressively worse since February 2006 when her job changed and her work station was poorly arranged”.

The worker advisor stated that it was the worker’s position that her bilateral CTS was caused by her employment activities over the past 30 years as an administrative clerk. He submitted, at minimum, the evidence supported the progression of her condition was related to the demands of her occupation. The worker advisor also submitted that the worker’s claim should be accepted based on the WCB’s pre-existing policy which prescribes that an injured worker will be entitled to benefits where there is a relationship between a pre-existing condition and a compensable accident. He submitted that the worker’s employment duties are the accident responsible for her injury.

On November 5, 2009, Review Office determined that the worker’s claim was not acceptable based on the following grounds:

· the worker used her right hand more than the left while working. As the worker’s CTS is bilateral, this suggested that the worker’s employment was not the cause of her condition;

· the worker had long-standing history of CTS. She managed her symptoms through massage and stretching. The symptoms recurred at various times over the years including when she was pregnant. After her pregnancy, the worker’s symptoms improved but did not resolve. Review Office found that the worker’s CTS was not caused by her employment activities.

· it was unable to establish through the evidence that the worker had aggravated a pre-existing CTS condition as a result of her work activities. Given that the worker used her right hand more than her left at work, it was difficult to correlate the nature of her job duties to the bilateral nature of her symptoms.

· Review Office was of the opinion that the worker’s recreational activities given their bilateral nature could be one of several causes of her symptoms.

· Review Office found that the worker’s duties would not have led to either the development of her bilateral CTS condition or an aggravation of an underlying CTS condition. On a balance of probabilities, the worker did not sustain personal injury by an accident arising out of and in the course of her employment.

On November 16, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Given the foregoing, the panel is unable on a balance of probabilities to relate the worker’s CTS to her employment. We feel that the worker's worsening CTS was simply a progression of the condition over time. We are unable to attribute the need for bilateral carpal tunnel release surgeries to the performance of job duties. We therefore find that the claim is not acceptable and the worker’s appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 29th day of July, 2010