Public Decisions | The Appeal Commission

Decision #12/11 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board ("WCB") for bilateral carpal tunnel syndrome ("CTS") that she related to the nature of her employment activities as a bindery worker and to her previous employment history. Her claim for compensation was denied by primary adjudication and an appeal was filed with Review Office. On March 8, 2010, Review Office determined that the worker's bilateral CTS condition was not caused by her work activities as a bindery worker and that the worker's pre-existing bilateral CTS condition was not aggravated by her employment activities. The worker disagreed with Review Office and an appeal was filed with the Appeal Commission. A hearing was held on December 14, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On September 14, 2009, the worker contacted the WCB to report a claim for sore wrists which she believed was caused by the following work related activities:

"I work in bindery.

It is all paper (business forms). If we have 200 in a pile, every 25, we have to shove a piece of cardboard in between. Sometimes, there is 500 in a pile. Then I have to pick up all 500 and lift them and put them on a pallet. Then, go for the next one. The numbers are always different. These are receipt books for restaurants, etc. This is constant. Once I am done switching them I go to the cutter and cut them and put them in a box and then take them to the pallet. I grip 100 pieces of paper at a time. I am using both hands. It is constant gripping, bending, twisting. I do stitching, cutting and laminating. This is what I do for entire shift. I have two 15 minute breaks. No lunch break."

The worker reported that she first noticed symptoms while working at prior jobs, particularly at a graphics company. She left that employment in early 2009 and worked at a few other jobs but did not perform repetitive work. She started employment with the accident employer at the end of July 2009 and after about four and a half weeks she noticed that her hands and wrists were numb and sore and it got to the point where she had to leave work on September 4, 2009. The worker reported that her middle and ring finger were also sore and that the knuckle of her left ring finger was grinding every time it moved. The left hand hurt more than the right hand.

Information obtained from the Employer Injury Report dated September 22, 2009 indicated that the worker came to work on September 4, 2009 and advised the plant manager that both of her wrists hurt. Then, on September 8, 2009, the worker came in with a doctor's note and said that her injury was from another previous employment.

Medical information showed that the worker saw a physician on September 7, 2009 with complaints of numbness to both hands for at least 8 months. The report stated: "Felt like hands were on fire - 4/7 ago. Intense pain to wrists 3/7 ago - when lifting a large bundle of books weighing approx. 15 to 20 lbs. Had to leave work 3/7 ago due to intense numbness to hand; no specific trauma - may be related to repetitive movements; pain, numbness awakens pt. @ night; has had no relief with Advil."

In a memorandum dated September 25, 2009, the WCB adjudicator described the worker's symptoms, employment history and specific job duties that the worker performed with each company that she worked for from September 11, 2000 onward.

In a decision dated September 30, 2009, the worker was advised that the WCB was unable to accept responsibility for wage loss benefits and medical treatment costs related to her claim for bilateral hand difficulties. The adjudicator based her decision on the worker's short employment history with the accident employer and because she was unable to confirm that the worker reported hand difficulties to her previous employers.

On December 1, 2009, a worker advisor appealed the above decision to Review Office. The worker advisor submitted that the worker developed an injury after undertaking job demands with repetitive hand motions, including frequent gripping, lifting and carrying with the accident employer as noted in the WCB memorandum dated September 25, 2009. In the event that Review Office did not find a relationship between the worker's activities and the development of her hand difficulties, she submitted that the claim should still be accepted as the information would support that the worker's job demands caused an aggravation and/or enhancement of an undiagnosed pre-existing condition, pursuant to WCB policy 44.10.20.10, Pre-existing condition.

On December 4, 2009, Review Office referred the case back to primary adjudication with instructions to obtain additional information from the worker's previous employers, to make a further decision with respect to whether the claim was acceptable based on the new employer information and to make a determination as to whether there was an aggravation or enhancement of a pre-existing condition.

File records showed that the adjudicator contacted the worker's previous employers (a marketing company, a graphics company, the meat packing plant, a glass company and the accident employer) for additional information.

On December 30, 2009, primary adjudication asked a WCB medical advisor to answer the following question, "What anatomical movements and in what frequency are required to develop Carpal Tunnel Syndrome? His reply was: "If physical actions are implicated in the causation of this condition, these actions typically involve a combination of force and repetition (e.g. forceful, repetitive grasping) occurring over a significant part of the workday."

In a decision dated February 16, 2010, the adjudicator advised the worker that the WCB was unable to accept responsibility for her claim. The adjudicator stated that after a review of the information which included the worker's delay in reporting, the delay in seeking medical attention and review of her employment activities, the adjudicator could not establish a relationship between the development of the current diagnosis and an accident as defined in subsection 1(1) of The Workers Compensation Act (the "Act"). On December 1, 2009, the worker advisor appealed the adjudicator's decision to Review Office.

On March 8, 2010, Review Office determined that the claim was not acceptable. Review Office indicated that it was unable to make the finding that the worker's CTS was caused by her employment activities as a bindery worker. Review Office noted that the work duties with previous employers were not established as constant or sustained nor did they involve high force and high repetition. It felt that the evidence did not support that the worker's job as a bindery worker was both repetitive and forceful or that any repetitive and forceful tasks were of a prolonged nature. It noted that the worker's job did not involve long stretches of any specific activity or any significant amount of mechanical stress or force for sustained periods. Review Office found that the worker's CTS was indicative of a non work related cause.

Review Office was also unable to find that the worker aggravated a pre-existing condition of bilateral CTS as a result of her work duties as a bindery worker. In making this determination, Review Office found that the evidence did not establish that the worker's bindery work materially contributed to the progression of her CTS. It noted that the worker had a number of different jobs since 2000 with varying symptoms over the years at work and at home. The symptoms varied with no reported changes in any one specific job. Review Office found that this course of events was not consistent with a finding of an aggravation of a pre-existing condition. It was consistent with the natural progression of a non work related condition or pre-existing condition. On March 30, 2010, the worker advisor 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 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 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 the evidence supported a relationship between the worker's employment duties and her condition of bilateral CTS. Her work involved many activities in awkward positions that strained her hands and wrists. WCB Policy 44.10.20.10 Pre Existing Conditions prescribes that where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the WCB will accept responsibility for the full injurious result of the accident. It was submitted that the intensification of the CTS with the work duties showed that the duties probably aggravated the worker's pre-existing condition to the point where surgery was necessary. The progression of her condition was more than likely related to her employment activities. Were it not for her employment duties, it was submitted that the worker likely would not have had the two surgeries when she did. The worker's claim for bilateral CTS ought to be accepted.

Employer’s Position

Two representatives were present at the hearing on behalf of the employer. The representatives questioned why the worker would have accepted the job with them knowing that she already had the CTS problems and knowing the type of work she would have to perform. The work duties and the circumstances surrounding the worker's report of injury were described to the panel by the employer's representatives. The employer's position was that it should not have to be responsible for the claim, given that it takes longer than five weeks to develop CTS.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that she suffered an 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 work duties:

(a) caused her bilateral CTS condition; or

(b) aggravated her bilateral CTS condition; or

On a balance of probabilities, the panel finds that the worker's bilateral CTS condition was temporarily aggravated by her work duties.

At the hearing, the worker reviewed the employment positions she had held during the previous five years. In 2005, she was a data entry operator and she worked on a keyboard all day, answering telephone inquiries and responding to letters. It was at this time that she first started to notice some slight numbness in her right hand. When she left this position, the numbness in her right hand subsided. From August 2006 to February 2009, she worked at a graphics company. The work she performed there involved extensive pushing and flexion of her hands and wrists and her symptoms of numbness returned in her right hand in April 2007, approximately ten months after she started. She recalled always shaking her hand and trying to get the numbness to go away. In the later part of 2008, she also developed numbness in her left hand, starting in her pinkie finger and moving up her hand. She never sought medical attention as she was never able to find time to make an appointment. After she left that employment in February 2009 (for reasons not related to her hands) the numbness went away after a few weeks.

After working for the graphics business, the worker was briefly employed by a manufacturer, then worked in a processing plant from April 26 to June 14, 2009. At the processing plant, she worked in two different departments. In the first department, she was responsible for lifting product weighing a few pounds and placing it on a cart. In the second position, she was required to use an extension mop and remove condensation from overhead pipes. The worker's evidence is that during this time, she did not have any symptoms in her hands.

On July 30, 2009, the worker commenced employment with the accident employer. The worker’s job duties were described at the hearing. She would be responsible for making receipt books by assembling the paper into a stack, fanning through the stack to find appropriate places to insert cardboard dividers, inserting the cardboard, then stitching the papers together. Throughout the process, the worker would fully extend her wrists and grip the paper with her hands. Other duties included cutting the receipt books, sealing, and applying shrink wrap around shipments. These duties also involved use of the hands and a significant amount of gripping.

The worker's evidence was that when she started working for the accident employer, she did not have any symptoms in her hands. Within two to three weeks, she started to have numbness in her hands, with the right hand developing first. The numbness started in her fingers, then moved up her hand. Eventually, she developed a sharp pain in her palm which would radiate up her arm. She had never previously experienced the sharp pain in her palm. By early September, she had to leave work in tears because of the pain and went to see a doctor. Her doctor referred her for nerve conduction studies and prescribed wrist splints. He suggested that she try to continue to work at light manual duties. The worker tried to do so, but was unable to continue because of the pain. September 16, 2009 was her last day of work for the accident employer. In February 2010 she had carpal tunnel release surgery on her right hand, and she did not return to the workforce until May 2010. On December 10, 2010, the same surgery was performed on her left hand.

Although the worker never sought medical attention for her symptoms until September 2009, it is clear from her evidence that the CTS symptoms were present since at least 2005. When nerve conduction studies were performed on September 10, 2009, the findings indicated a moderate median neuropathy at her wrists. The panel's understanding is that it takes a considerable amount of time for a CTS condition to progress to the "moderate" stage, and certainly longer than the five weeks the worker was employed by the accident employer. We therefore find that the bilateral CTS was not caused by her duties with the accident employer and that it was a pre-existing condition.

Although we find that work did not cause her bilateral CTS, we do feel that the worker's pre-existing CTS was temporarily aggravated by her work duties. When she commenced her employment, she was not experiencing symptoms in her hands and she was willing and able to perform the work which involved extensive use of her hands and arms. The worker's evidence was that the numbness returned within a few weeks, and that she also experienced some sharp pains in her palms. The panel accepts that the return of the numbness bilaterally and the new sharp pain in the worker's palms was caused by the effect of her work duties on her pre-existing CTS.

The worker's evidence was that after she performed her last shift with the accident employer on September 16, 2009, it took "a couple of weeks" for the numbness to subside. Further she never experienced the sharp pain in her palms again. She would still have occasional pain or numbness in her wrists if she tried to do some activity with her hands, such as pouring coffee from a pot.

The panel therefore finds that the temporary aggravation of the worker's pre-existing CTS resolved by October 1, 2009, which is two weeks after her last day of work.

The panel considered whether or not the worker's pre-existing condition was enhanced by her work duties. We have concluded that it was not. Although the worker proceeded to have surgery on both her right and left wrists in 2010, the panel does not find that her work with the accident employer necessitated or accelerated the need for this surgery. The neurologist's report dated September 10, 2009 stated: "There is no active denervation suggesting that surgery isn't urgent but because she has had symptoms for several years, I think it likely that she will need surgical decompression at some point." This indicates that it was the history of several years of symptoms which caused the need for the surgery, and not the five weeks of duties. Further, a review of the duties being performed by the worker did not reflect extensive forceful gripping, high repetition, or sustained awkward postures. There was some variety in her tasks and opportunities for rest. While we accept that the duties may have aggravated a susceptible pre-existing condition and made it temporarily more symptomatic, we do not accept that the work duties were so robust that they led to the need for surgery. The panel finds that the worker ultimately required surgery because of the natural progression of her pre-existing CTS condition.

For the foregoing reasons, we find that the worker has an acceptable claim for a temporary aggravation of a pre-existing CTS condition. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
M. Bencharski, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 4th day of February, 2011

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