Decision #52/11 - Type: Workers Compensation
Preamble
The Workers Compensation Board ("WCB") accepted the worker's claim for bilateral carpal tunnel syndrome as being related to the nature of her job duties as a bindery helper. The employer disagreed with this finding and requested a hearing. The employer advanced the position that the worker's job duties were not causative of her diagnosed condition. A hearing was held on March 3, 2011 to consider the matter.Issue
Whether or not the claim for bilateral carpal tunnel syndrome is acceptable.Decision
That the claim for bilateral carpal tunnel syndrome is acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB on January 6, 2009 for difficulties she was experiencing with both her hands and shoulders which she related to the repetitive nature of her job duties as a bindery helper. The worker described her job duties as follows: lifting paper bundles off a pallet and onto a machine; fluffing bundles; feeding feeders, sometimes two; sometimes loading three machines; lift, fluff, drop in a constant rhythm and constant repetitive movement; packaging; hand stapling; padding; putting things in boxes. The worker believed that the fluffing of the bundles aggravated her wrists as the bundles could be quite heavy.
The worker advised the WCB that she first noticed symptoms about a year ago. She started working in December 2007 and worked for fourteen days straight. She was casual at the time. During this time she could not sleep at night as her hands, arms and fingers were all numb. In March 2008, she became a full time employee and a few months later she did a heavy job and her shoulders were burning. Every week her symptoms worsened. The worker noted that she had twisted her left wrist on a pallet and now it was worse than her right wrist. The worker indicated that she made casual comments to co-workers of her symptoms.
The employer's injury report dated January 9, 2009 indicated "No particular incident, general pain, soreness and numbness for many months."
On January 19, 2009, the worker advised a WCB adjudicator that she never had prior problems with her wrists. The worker said she knitted but not every day, just once in a while. The knitting did not bother her hands/wrists until she started to work with her present employer. The worker advised that fluffing was the part of the job that caused her problems. When fluffing she would have to grip the paper, twist her wrists and pull out the paper and bend her wrist. She would spend nine hours out of her ten hour shift fluffing. The worker would grab a bundle of inserts for a publication in her arm and then with her hand pull the paper apart similar to a deck of cards being spread out and then pull some of the individual papers up then run her hand through them before stacking or placing them in the loading pocket. They would make 38,000 copies of the publication.
On January 21, 2009, an employer representative confirmed the job duties described by the worker. The representative reported that the worker's job duties in the bindery department entailed a lot of working with her hands. She described fluffing bundles as taking a stack about 4 to 6 inches wide and holding them with one hand and fanning with the other to put air between the pages. The representative stated that the employer had concerns because the worker told someone that her problem has been occurring for a very long time. It was felt that the worker had a pre-existing condition which had now been aggravated by work.
In a note to file dated March 12, 2009, a WCB case management representative noted that the accepted diagnosis was carpal tunnel syndrome ("CTS").
In a report dated March 17, 2009, a physiotherapist reported that the worker presented with mild positive CTS, significant thoracic outlet syndrome, neural tension and rotator cuff impingement. The physiotherapist writes: "It is very difficult to tease out separate diagnoses for this patient as her significant postural weakness and dysfunction are the root cause of her other diagnoses."
In a note to file dated March 24, 2009, the WCB case manager spoke with the worker for the first time and obtained additional information concerning her job duties and the onset of her symptoms. The worker noted that her hobbies were sewing and knitting.
In a note to file dated April 9, 2009, the WCB case manager indicated that he attended the worker's jobsite and was shown the job requirements associated with filling pockets and shrink wrapping.
On November 9, 2009, an advocate representing the employer spoke with a WCB staff member and expressed concerns over the adjudication of the worker's claim in regard to the diagnosis of bilateral CTS.
On December 4, 2009, a WCB medical advisor noted to the file that he discussed the worker's file with the case manager. He noted that the work duties outlined in the worker's incident report appeared to involve repetitive and forceful grasping and wrist movements. While the development of CTS is recognized to reflect the effects of multiple potential influences both intrinsic and extrinsic, the workplace duties involved repetitive forceful grasping and/or wrist movements that are recognized as significant contributors.
In a December 1, 2009 decision, the case manager indicated that the weight of evidence supported that the worker's workplace duties were the cause of her CTS. His rationale for the decision was as follows:
- during the worksite visit of April 9, 2009, the job demands of a bindery helper were observed during the run of a publication which was the heaviest run done once a week. A male was observed grasping bundles of the papers and a wide grasp was needed. The pace of the stacks that came out of the machine appeared to be frequent. Although the duties were only performed once per week, the worker expressed discomfort when performing these duties.
- the physical demands of fluffing bundles and the physical demands involved with the weekly publication papers were reviewed with a WCB medical advisor. It was felt that although CTS can be multi-factorial, it was the medical advisor's opinion that the workplace duties were a significant factor.
- during the work site visit, the case manager spoke with a female worker who performed similar duties to what the worker performed. The worker indicated that she did have discomfort; consequently this also confirmed that these duties can aggravate the wrist.
- the worker stated her wrist got better when she was away from her work duties. The worker stated that after her wrist problems developed, she felt discomfort trying to sew or knit.
- the worker had been employed for approximately a year at the time of the accident. She was classed as casual from December 2007 to March 2008. In 2008 she was given full time 'regular' status. It was indicated that even though the worker was classed as 'casual', she was working full time hours, if not more (i.e. weekends). She had to perform the same fluffing of papers. When her hands started to go numb, she just thought she had overworked her hands. The attending doctor subsequently told her that she had CTS.
On February 4, 2010, the employer's advocate submitted to Review Office that the job tasks performed by the worker did not meet the established criteria supporting that the diagnosis of bilateral CTS was a WCB responsibility. The advocate noted that the worker initially reported CTS type symptoms within weeks of starting her employment in December 2007 and did not seek medical attention until January 2009. It was the employer's position that the worker was pre-disposed to develop CTS and that her duties as a bindery helper were not the cause of her bilateral symptoms. The worker's job duties were varied and did not involve repetitive and forceful gripping.
Prior to considering the appeal, Review Office requested a jobsite assessment to view the job duties as a bindery helper. The report related to this visit is on file dated June 17, 2010 and included a job analysis.
On June 22, 2010, Review Office referred the case to a WCB medical advisor to review the file information and to comment on whether the worker's bilateral hand/wrist difficulties were a direct result of the mechanics required in the use of her hand/wrists in carrying out her job duties.
In a response dated June 25, 2010, the medical advisor stated the following:
…The stitcher duties appear to involve repetitive gripping/grasping with a variable degree of force….Whether there was a degree of pre existing CTS or a propensity to develop this condition does not change the fact that the work duties by virtue of their requirement for frequent forceful gripping/grasping and frequent wrist movements would be considered likely contributors to the ultimate development or worsening of CTS.
In a decision dated July 15, 2010, Review Office confirmed that the claim for compensation was acceptable. In making its decision, Review Office indicated that it placed significant weight on the information provided during the worksite visit, the job analysis and the opinion of the WCB medical advisor. It found that the worker's bilateral CTS arose out of the repetitive and forceful gripping/grasping of paper bundles weighing up to 11 lbs. requiring variable degree of force.
On August 12, 2010, the employer 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.
Employer’s Position
An advocate and the employer's operations manager appeared on behalf of the employer at the hearing. It was submitted that the worker's diagnosis of bilateral CTS was not a responsibility of the WCB. The worker's job duties were carefully described and demonstrated for the panel and it was noted that the pinch/forceful grip was not required to perform the worker's primary task of loading inserts into a machine. It was more of a balancing type of grasp where the thumb was used to guide the paper. With respect to the fanning duties, the operations manager noted that fanning was not required to be done with each bundle, and that the practice was to only fan occasionally, as the operator felt necessary. The employer admitted that the job was repetitive, but said that it did not involve sustained posturing and that the wrists and hands were not held in an extreme end range of flexion and extension for a length of time. There was no sustained maximal gripping. There was also no exposure to vibration, which is a common contributing factor to CTS.
The employer submitted that the worker reported that her symptoms first appeared in December 2007. It was noted that at that time, the worker had only just started working for the employer, and the publication which the worker identified as being the most problematic had only been produced twice during that month. It was submitted that having worked in the workplace for less than a month and having only done two runs of the heavy publication was not enough to materially contribute to the development of a bilateral CTS condition.
The employer also noted that there were other factors known to contribute to CTS present, including the worker's gender, age, the fact that she was a smoker and her hobbies such as knitting which may be responsible for development of the worker's condition.
Worker’s position
The worker did not participate in the appeal.
Analysis
The issue before the panel is whether or not the claim for bilateral CTS is acceptable. In order for the employer’s appeal to succeed, the panel must find on a balance of probabilities that the worker's bilateral CTS condition was neither caused nor aggravated/enhanced by her work duties. We are not able to make this finding.
The submission made by the employer strongly emphasized that the onset of the worker's CTS symptoms relatively soon after she commenced employment indicated a non-work related etiology for her condition. The panel is inclined to agree with this submission. The fact that the worker developed numbness in her hands within a month after starting her duties would suggest that the worker already had a pre-existing condition, or at minimum, a propensity, to develop CTS. We do not think that the short period of time she was employed with the accident employer before the onset of symptoms would be long enough for her to develop the condition from the types of job duties she was performing.
The worker’s job duties were described in detail at the hearing. It was repeatedly stressed by the employer's representatives that the lifting mechanism required to perform the worker's duties was not dependent on a strong pinch grip of the thumb in order to load the inserts into the machine. It was described more as a supporting grip. While the panel acknowledges the point being made by the employer, we feel that these comments relate primarily to the part of the worker's task where the inserts are readied for placement into the machine. However, the WCB's June 17, 2010 worksite and job analysis also identified the need for a power grip to grab bundles of inserts off of a pallet located behind the production line. There was also some degree of grip required to fluff or fan the inserts. It was noted on the WCB file that given the worker's small stature, it was reasonable to assume that a stronger grasp or gripping would be required for her to perform the tasks.
After considering the evidence before us, the panel is satisfied that the job duties the worker was performing were sufficient to aggravate and ultimately enhance a pre-existing CTS condition. While we do not feel that the duties and the workload being performed by the worker were in and of themselves sufficient to cause the worker to develop CTS bilaterally, we do find that the power gripping duties were of the type typically associated with the development of a CTS condition and on a balance of probabilities we find that they did cause an aggravation. As the aggravation accelerated the progression of the worker's condition to the point where she required surgery on both sides, we consider the effect of the work duties as being an enhancement for which there is an acceptable claim.
The panel agrees with and adopts the June 25, 2010 opinion of the WCB medical advisor wherein he states: "Whether there was a degree of pre-existing CTS or a propensity to develop this condition does not change the fact that the work duties by virtue of their requirement for frequent forceful gripping/grasping and frequent wrist movements would be considered likely contributors to the ultimate development or worsening of CTS."
The panel therefore finds that there is an acceptable claim for aggravation and enhancement of a pre-existing bilateral CTS condition. The employer's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 27th day of April, 2011