Decision #112/10 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board ("WCB") for difficulties she was experiencing with both hands that was diagnosed as bilateral carpal tunnel syndrome ("CTS"). The worker's claim for compensation was denied by primary adjudication and an appeal was sent to Review Office. On March 17, 2010, Review Office accepted that the worker's right CTS was compensable as it considered that her work duties aggravated and enhanced her condition. In a further Review Office decision dated September 10, 2010, it was determined that the worker was entitled to wage loss benefits beyond July 16, 2009. The employer disagreed with both decisions and appeals were filed with the Appeal Commission. A hearing was held on October 21, 2010 to consider the matters.

Issue

Whether or not the claim for right carpal tunnel syndrome is acceptable; and

Whether or not the worker is entitled to wage loss benefits after July 16, 2009.

Decision

That the claim for right carpal tunnel syndrome is not acceptable; and

That the worker is not entitled to wage loss benefits after July 16, 2009.

Decision: Unanimous

Background

In April 2009, the worker submitted a claim to the WCB for difficulties she was experiencing with both hands. Attached with her application was a letter from the worker which stated:

"Actually this is not an accident so to speak. It is a situation wherein my both (sic) hands are concerned. It started in 2007; I felt soreness and pain. Having a housekeeping job, I perform the same repetitive movements with my hands. I talked to my doctor about it. That time he made an appointment for me to see a specialist for my hand. So while I'm waiting I continuously worked at normal housekeeping. I'm not on any modified duty in anyway. Then he found out that I have carpal tunnel. He told me to stop working for a while, but I told him I can't afford to miss work just like that. Until I can work with my hands I continued working with the help of pain reliever. As time goes by I noticed that my grip is deteriorating. I dropped things. It became worse. This prompted me to see my doctor again which is Dr. [name]. Upon seeing my hand he told me I need surgery for my hands. He sent me to Dr. [name] who did the surgery on my right hand at [hospital]".

The Employer's Injury Report signed by a manager indicated that no accident was reported by the worker.

In a telephone conversation with an adjudicator on April 30, 2009, the worker confirmed that in the summer of 2007, she began to notice that her hands were hurting every morning with stiffness and numbness. The worker outlined her job duties as mopping floors, wiping counters, sweeping, cleaning garbage and cleaning washrooms. She would usually use her right hand to wipe down the counters. The worker did not mention the injury to anyone at work in 2007 but mentioned her symptoms to a supervisor in 2008. The worker indicated that she has worked in the housekeeping department doing the same job duties for 9 years. She is right hand dominant.

On May 26, 2009, the adjudicator spoke with the worker's supervisor who indicated that the worker reported her hand/wrist difficulties to him at the end of March 2009. He described the worker's job duties as cleaning washrooms - mopping, wiping down mirrors, toilets and sinks. The mop does not require any heavy duty wringing out. The worker mops for 10 minutes at a time out of every hour for an 8 hour shift. The worker did dusting, picked up garbage with a garbage picker and pushed/pulled the garbage can which is on wheels. She did vacuuming a couple of hours a week. The worker's job duties would alternate between each job duty each day.

On May 26, 2009, the worker was advised that her claim for compensation was not accepted as the WCB was unable to establish a relationship between the development of her bilateral carpal tunnel syndrome ("CTS") condition to her work duties. On July 28, 2009, the worker appealed the decision to Review Office and provided additional details regarding her daily work duties.

On August 12, 2009, an advocate for the employer submitted to Review Office that the adjudicator's decision of May 26, 2009 was correct. The advocate indicated that none of the worker's job duties required high force, repetitive activity involving motions of the wrist, such as twisting, gripping, pulling, pinch-pressure, wrist flexion/extension and use of vibratory tools which were the duties recognized by the WCB as work related risk factors for CTS. The advocate felt there was no evidence of a relationship between the worker's work duties and her bilateral CTS condition.

In a letter dated September 23, 2009, Review Office advised the worker that her claim would be returned to primary adjudication in order for a WCB rehabilitation specialist to perform an in depth analysis of her job duties. After this was done, the case manager's decision would be revisited and if she disagreed with the decision, Review Office would reconsider it if she wished.

On November 9, 2009, a job analysis was performed at the workplace. The WCB rehabilitation specialist noted that the job of housekeeper at the worker's place of employment was a standard cleaning job. Both hands are utilized throughout the day in various positions, various grips and grasps of the various cleaning tools. For the most part, medium forces need to be applied to most tools in order to get a full grip on the tool. Open palm grasps were used for all wiping, but many placed the wrist in ranges towards end of extension, cylindrical grasps were used for all mops, handling of garbage bags. Wringing of mops required use of one hand, usually the dominant, to depress the lever, requiring medium force. Sustained grasps of medium force were short lived in the task. The specialist noted that the pace was steady. Forces were light to medium in terms of the gripping and grasping and most weights were under 10 lbs. It was very light garbage pick- up. The wrists would tend to go through inner to outer ranges throughout a shift and would vary throughout a shift. Mopping, mirror cleaning, toilet cleaning etc. could be considered to be tasks that are prolonged in nature with wrists going through various ranges. There was little hand vibration with use of vacuum. The specialist noted that the employer's job description stated "occasional arm use" and it was agreed that this should read "frequent…leaning towards continuous."

On January 5, 2010, the worker advised her adjudicator that she always used her right hand to clean. She started to use both hands when her right hand got bad but was unsure of when she would have started using both hands. During an average week, she would clean the washroom on a constant basis for 3 days at the most. This would only be if they were really short staffed. The worker would float for a day which involved putting up and emptying garbage and filling in for her co-workers on breaks. This would involve some washroom cleaning but only for about 30 minutes. The fifth day she would work in another area involving picking up cups, wiping machines, emptying garbage, sweeping and sometimes vacuuming.

On January 5, 2010, the worker was advised by primary adjudication that no change would be made to the decision that there was no relationship between her hand/wrist difficulties and the performance of her work duties. On January 27, 2010, the worker appealed the decision to Review Office. On March 2, 2010, the employer's advocate submitted that the decision made by the adjudicator on May 26, 2009 should be upheld.

In a decision dated March 17, 2010, Review Office determined that the claim for right CTS was acceptable. Based on the weight of evidence, Review Office was unable to find that the worker's bilateral CTS was causally related to her employment activities. It did find, however, that it was most probable that the worker's work duties aggravated or enhanced (as defined by policy 44.10.20.10, Pre-Existing Conditions) her right CTS condition.

Review Office stated in part, that the worker's bilateral CTS condition suggested that the cause could be related to a systematic condition. The fact that the worker is right hand dominant and her CTS was significantly worse on the right than the left suggested that factors other than her body habitus accounted for at least an element of the worker's CTS. Review Office indicated that the following aspects of the worker's job could be associated with the development of CTS (as noted by the WCB rehabilitation specialist): "wrists would tend to go through inner to outer ranges throughout a shift and would vary throughout a shift…" Review Office indicated that it would expand "cleaning mirrors" to cleaning non horizontal surfaces. It stated that there were weekly rotations between five different areas. The duties in each were not overly different.

On April 5, 2010, the employer's advocate appealed Review Office's decision to accept the worker's claim and an appeal was filed with the Appeal Commission. A hearing was arranged for October 21, 2010.

In the interim, a WCB medical advisor reviewed the file on April 23, 2010. Work restrictions for the worker's right hand were outlined as follows: To avoid tasks requiring repetitive motion and sustained grip. Lifting up to 5 pounds was considered to be reasonable.

When speaking with a WCB case manager on April 27, 2010, an employer representative indicated that the employer would have been able to accommodate the worker's right hand restrictions.

On April 28, 2010, the WCB case manager advised the worker that "…I have reviewed the available medical information and have consulted a WCB health care advisor to provide appropriate restrictions for your compensable right hand injury. With these restrictions in place and with your employer's willingness and ability to accommodate, the WCB can cover full wage loss benefits to July 16, 2009...The WCB, when considering return to work and entitlement issues can only deal with the compensable injury, in this case based on the RO [Review Office] decision of March 17, 2010 would be your right hand injury. If your employer can accommodate your compensable restrictions but other health issues are creating a greater amount or more severe restrictions, the WCB cannot take these into consideration when applying benefits. In this case, other health issues were preventing your return to work and the WCB cannot take these into account and can only cover benefits until the right hand would have allowed you to return to work with the appropriate restriction. That date was determined to be July 16, 2009 based on the available medical information on file."

On May 10, 2010, a worker advisor appealed the above decision to Review Office. The worker advisor submitted that the medical evidence supported that the worker was unable to work beyond July 16, 2009 due to the effects of her compensable injury. It was also submitted that while the accident employer had recently indicated to the WCB that they would have accommodated the worker, the claim file confirmed that modified or alternate duties were not actually offered to the worker.

In a decision dated September 10, 2010, Review Office determined that the worker was entitled to wage loss benefits after July 16, 2009. It was Review Office's position that under the thin skull principle, the worker was entitled to further benefits and services beyond July 16, 2009. The employer disagreed with the decision and the issue was added for the appeal panel's consideration.

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 right carpal tunnel syndrome (“CTS”) arose out of and in the course of her employment.

Employer’s Position

An advocate and the employer's acting director of human resources appeared on behalf of the employer at the hearing. It was the employer's position that the worker's right CTS did not arise out of and in the course of her employment as a housekeeping attendant and that there was no evidence to suggest that her employment aggravated the pre-existing condition. There were no substantial changes to her duties over the eight years that she worked in her position. She did not report a workplace accident to her employer nor relate her condition to her employment until she filed the claim in April 2009. This was despite the fact that she had the condition as early as 2007. Two physical demands analyses were on the file, one from the employer, and one prepared at the request of the WCB. Both confirmed that none of the duties of housekeeping attendant required high force, repetition, awkward postures or vibration, all factors which could be considered risk factors for CTS. Further, the worker performed her duties on a rotational basis, so she was not doing the same duties all the time. It was submitted that there was no medical evidence to suggest that the work duties aggravated the CTS. It was noted that nerve conduction studies indicated that the condition remained relatively unchanged over a three year period, in spite of surgery and an absence from work for several months. This suggested that the work duties neither caused, aggravated or enhanced the condition. Given that the worker was right handed and likely performed the majority of her activities of daily living with her dominant right hand, it was just as likely that something other than work aggravated her condition, or that it was not aggravated at all, but simply progressed to a point where the worker chose to have surgery. CTS was noted to be a progressive condition. The fact that the symptoms had not improved after removal from her duties also suggested that something other than work was at play. Finally, it was noted that CTS is a condition that could be caused by a number of non-work factors, including being middle aged and female, and that the condition could also arise idiopathically, that is for no known cause.

With respect to the second issue, it was submitted that the worker was not entitled to wage loss benefits after July 16, 2009. The employer could have accommodated the worker's right hand restrictions and provided her with modified duties in the housekeeping department. The facts were that the worker was not available for work due to her bilateral hand condition and her physician's continued recommendation that she stay off work completely. It was submitted that there was no basis under the workers compensation legislation to pay ongoing wage loss for a condition that has not been accepted as work related.

Worker’s position

The worker was assisted by a worker advisor at the hearing. The position advanced on behalf of the worker was that she first started to feel soreness and pain in both hands in 2007. Her doctor advised her to stop working for a while, but she could not afford to do this so she continued working with the help of pain relievers. Over time, her grip deteriorated and she dropped things. Her condition became worse. The work being performed by the worker involved many activities that strained her hands and wrists. Her small stature made some of these duties even more difficult and awkward for her. Mopping and sweeping floors required constant wrist pressure and a strong grip. The worker's employment involved duties which involved aspects of many known CTS risk factors. Medical support for her claim was provided by the worker's treating family physicians, neurologist, and pain management specialist. It was submitted that had it not been for her employment duties, the worker likely would have not had the two surgeries when she did. Where there is evidence that a worker's employment has enhanced the worsening of a pre-existing condition, then the WCB is responsible.

Analysis

At the hearing, it was confirmed by the worker advisor that it was not their position that work originally caused the worker's bilateral CTS condition, but only that the job duties caused the pre-existing CTS condition to deteriorate more rapidly in the worker's right hand. Accordingly, in order for the employer’s appeal to succeed, the panel must find on a balance of probabilities that the worker's pre-existing right CTS condition was neither aggravated nor enhanced by her work duties. We are able to make this finding.

At the hearing, the worker’s evidence was that she first noticed her CTS symptoms in about 2007 when she experienced numbness in her right hand. She went to her doctor who recommended that she stop working for a while. The worker did not want to do this as she felt that she was still capable of working, despite the pain. It was her hope that the pain would eventually go away. So the worker put up with the pain and continued to perform her regular job duties without ever complaining to her employer. The panel was left with the clear impression that the worker is a good and dedicated worker.

Unfortunately, the pain never went away and eventually, in 2009, the worker's doctor noted that she was losing muscle in her hand and told her that she would be required to have surgery on her right hand. During this period, the worker continued to perform her regular job duties for the employer without modification.

The worker’s job duties were described in detail at the hearing. There were two main types of areas to which the worker would be assigned. They were washrooms and public areas. The worker described the washroom duties as being the ones which were more difficult on her hands, and particularly when squeezing out the mop. The types of tasks she would have to perform to clean the washrooms included the following:

  • Wiping and dusting counters
  • Cleaning toilets with a disinfectant spray bottle in her left hand and wiping with a dry cloth in the right hand
  • Sweeping the floor with a broom and dustpan
  • Mopping the floor with a string mop and bucket
  • Changing disposable products (paper towels, toilet paper, tissues)
  • Emptying garbage and waste receptacles
  • Using keys to open various supply compartments

The worker's duties in cleaning the public areas involved the following:

  • Pushing a cleaning supply cart around the public floor areas
  • Emptying garbage receptacles by lifting garbage by a liner and placing it in a larger garbage bin on a cart
  • Periodically emptying the large garbage bin in a chute to a compactor
  • Using a claw-like device called a garbage picker to reach trash on the floor and between equipment
  • Vacuuming
  • Dusting and wiping down surfaces

After considering the evidence before us, the panel is of the opinion that the worker’s right handed CTS was not causally worsened by her work duties. The worker had been performing the same duties for the previous eight years with no significant changes noted. In the panel's opinion, the job duties being performed by the worker were varied, involved limited force, and for the most part, a neutral wrist position was maintained. There was almost no use of vibratory tools. We considered the pushing of the cleaning supply cart which may involve awkward positioning of the wrists, but found that this position would not be sustained for any significant period of time. The use of the garbage picker required a strong pinching action, but would not be a sustained repetitive movement. The use of the keys would not be repetitive or forceful. Wiping of mirrors and counters would typically involve a neutral wrist position. The panel considered the use of the trigger spray bottle, but noted the worker's evidence that she typically held this bottle in her left hand. Further, the worker herself never identified this task as an aggravator. With respect to the wringing of the mop, the worker identified this as the task which caused the most pain in her wrist. The panel is of the view that while this task may have elicited the most pain due to the force required to activate the lever, we do not find that the task was causative of her CTS deterioration, given the low frequency of repetition required. Overall, the panel finds that the nature of the worker’s job duties were not the type which are typically associated with the aggravation or enhancement of CTS. We find that there simply was not the degree of sustained repetition, force, or awkward movement which would cause a CTS condition to deteriorate. Plus, the facts that the worker's duties had not changed over eight years and that her CTS condition remained relatively static regardless of her removal from the workplace further suggest that there is no causal connection.

The worker advisor relied on a number of physician's reports which supported a causal relationship between the worker's CTS and her work "as a housekeeper." The panel finds that the reports tend to make generalized statements about the causal relationship without any discussion of the specific body movements involved in the worker's duties which would be causative of her CTS. The reports only reference "repetitive use" and provide no detail as to the type of repetitive use which would tend to aggravate the CTS condition. Given the superficial analysis as to the effect of the job duties on the worker's CTS, the panel places minimal weight on the physician's opinions as to causation. It is also notable that the physicians are prepared to find a causative link between the worker's duties and her CTS, rather than limiting the opinion to an aggravation/enhancement. The panel notes that the worker's CTS is, in fact, bilateral, and the worker's compensation claim is limited to an aggravation of the right side only.

The panel therefore finds that the worker's claim for an aggravation and enhancement of her right CTS should not be accepted. Given our decision on the first issue, it follows that for the second issue, in the absence of an acceptable claim, the worker is not entitled to wage loss benefits after July 16, 2009. The employer's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of December, 2010

Back