The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker filed a claim with the WCB for difficulties she was experiencing with both hands and wrists commencing in 2008 which she related to her work duties as a registered nurse/foot care nurse. Nerve conduction studies performed July 22, 2008 confirmed the diagnosis of bilateral carpal tunnel syndrome ("CTS"), right worse than left.

On May 6, 2009, primary adjudication contacted the worker to gather additional information regarding her work duties and the onset of her symptoms. The worker indicated she was a registered nurse for 11 years as of June 2009. Her work duties were repetitive and all work activities were done with her right hand. When cutting toe nails, she did pinching/squeezing motions with clippers and scissors. She filed nails with a grasping motion back and forth with effort at different angles. She normally did foot care for 3 to 5 patients a day. Some patients were diabetic or older patients and therefore a lot of skin had to be removed. Each patient was booked for one hour.

The worker advised that her other duties involved blood sugar testing using a lancet (pull top off and push it against finger, then put blood on slide to test) with her right hand. The worker dispensed medication, gave injections and also took vital signs. She did chart work and used a computer. When lifting and transferring patients, there was force involved and gripping when positioning patients.

As per her physician's advice, the worker said she only did foot care one day a week for 3 to 5 patients. Normally, she did foot care daily and had been doing so for the last 11 years. The worker noted that she was aware of three other co-workers with similar problems. Prior to the onset of her symptoms, there was no change in her job duties. The worker stated that her supervisor was aware of her ongoing difficulties.

On June 1, 2009, primary adjudication spoke with the worker's supervisor who confirmed that the worker did assessments, treatment and nursing foot care daily. She disagreed with the worker's statement that she saw 3 to 5 patients for foot care per day. There were at that time 3 nurses who assisted 2 foot care patients/day but rarely spent more than a half hour on each. In 2008, the worker may have been doing 1 to 2 more patients occasionally, but not daily. The worker did 15 to 30 minutes of computer work per shift, wrote in files if there was an unusual occurrence, approximately 1.5 hours at a time maximum, twice per week. She may see nine patients per day but not every patient required foot care or bandage changes. Eighty percent of visits with patients involved conversations to check up on their condition. The supervisor thought that the worker's symptoms came on gradually. She had been aware of the worker's symptoms for at least a couple of years. It was confirmed that one unit assistant had trigger thumb and 2 part time nurses expressed discomfort with wrists but she was not aware of the diagnosis.

In a decision dated June 4, 2009, primary adjudication advised the worker that her claim for CTS was not compensable. Primary adjudication outlined the opinion that the nature of the worker's job duties were not highly repetitive and the forceful duties were interspersed with her other duties. Although there was some force involved, this was not done in a repetitive manner. Primary adjudication therefore was unable to establish a relationship between the development of CTS and the worker's employment.

On March 30, 2010, a union representative acting on the worker's behalf submitted a Physical Demands Analysis to demonstrate that the demands of the worker's job duties could be associated with an aggravation of her bilateral CTS condition.

In a decision dated May 20, 2010, primary adjudication advised the worker that there was no medical evidence to support that a diagnosis of CTS was made prior to reporting the symptoms to the employer in 2008, therefore the WCB could not consider this under the WCB's pre-existing clause. Following a review of the file including the Physical Demands Analysis, primary adjudication confirmed its decision of June 2, 2009. On July 15, 2010, the worker's union representative appealed this decision to Review Office.

In a submission to Review Office dated September 3, 2010, the employer's representative outlined the position that there was no evidence to conclude that the worker's bilateral CTS condition was caused by her work or that it was a pre-existing condition aggravated by work.

On September 14, 2010, Review Office confirmed that the worker's claim was not acceptable. Review Office stated it was unable to make a finding that the worker's job duties caused the development or aggravated a pre-existing condition of bilateral CTS. Review Office acknowledged that the worker's job duties involved repetitive tasks; however, the tasks did not require a level of forceful and repetitive hand motions, awkward positions, and mechanical stress at the base of the palm and vibrations to an extent or degree that would cause CTS or aggravate it as a pre-existing condition. It therefore was unable to establish that the worker sustained an accident.

On September 29, 2010, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged. On May 2, 2011, the union representative provided the Appeal Commission with a submission for consideration.

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 CTS arose out of and in the course of her employment.

Worker’s position

The worker was assisted by a union representative at the hearing. The position advanced on behalf of the worker was that the completion of her work duties resulted in the development of her bilateral CTS, or alternatively, that the work duties caused an enhancement and/or acceleration of a pre-existing condition. It was submitted that the worker's position involved both manual labour/working with her hands and secretarial duties. Both these types of duties involved risk factors for CTS. Specifically, the computer usage, handwritten charting and the use of hand tools which required grasping, pinching, repetitive and forceful movements, including vibrations into the palm of the hand were the main contributors to the worker's CTS. Other less causative contributors included in her job duties were the acts of manual filing, shaving and awkward positioning of holding limbs while performing foot care. All of these duties combined together to produce a repetitive and forceful use of the hands and wrists throughout the day, which over time led to the worker's bilateral CTS.

At the hearing, the worker gave evidence regarding the scope of her duties. Her job involved making home visits to clients, and also providing services in the clinic. In the clinic, she performed intake assessments and provided wound care and aggressive foot care for clients with severely disfigured feet. She spent "a very large amount" of her time advocating and interviewing clients. She was also required to do charting, including all of the quality assurance type charting. Traditionally, this was mostly done in handwriting. In October 2010, the system became computerized and her charting duties changed to mostly keyboarding. On an average day, the worker would see 8 to 12 clients. Of these, she was only supposed to have one footcare client, but due to staffing issues, the worker found that on average, she would have 3 to 5 footcare clients per day.

When performing footcare, the worker's evidence was that she generally used her left hand to hold the client's foot or toe and cleaned with her right hand. She would use a pinch grip with her left thumb and index finger to lift and/or separate the toes. Often, awkward positioning was involved and she may have to hold the leg/foot suspended while performing the footcare. Cleaning involved using a cotton swab which was moistened with solution from a pump bottle. After the foot was cleansed, she would use a double ended curate to separate the nail from the skin bed. Then she would proceed to trim the nail, either by using clippers or scissors. The equipment in 2008 was in poor shape which resulted in the worker having to use a fair amount of force to be able to cut the nail. After cutting the nails, she would file the nails and any calluses. With about 20-30% of the clients, she may have to use a Dremmel tool. The Dremmel tool was held in the palm of the hand and caused vibration. Generally, 1 hour was required to perform foot care on a client.

Overall, the worker felt that the two duties which most caused her wrist to flare up were the foot care and the documentation. She felt, however, that it was important to look at the situation holistically and consider not only the duties performed, but also the poor condition of the foot care equipment and the lack of staffing which resulted in the worker having to pick up extra footcare duties.

Employer’s Position

An advocate represented the interests of the employer at the hearing. It was submitted that there was no evidence of a cause and effect relationship between the worker's bilateral carpal tunnel syndrome and her work duties, nor was there any evidence that the work duties aggravated or enhanced a pre-existing condition. The worker had been in the same position for eleven years. There were no changes in her job duties prior to the onset of her symptoms to account for the rise of CTS. The tools used by the worker may have been less than ideal but other tools were also available. The job duties were varied and most of the activity was done with the dominant right hand, specifically the cutting of the nails, the filing and the callus removal. The job duties did not involve a high level of sustained forceful repetitive motions with both hands which would contribute to the rise of CTS. When holding the Dremmel tool, the worker's wrist was not in a flexed or bent or awkward position; rather it was in a static position. Further, the majority of the worker's day was spent in non-intensive physical activity such as patient assessment, patient education, talking to patients, charting, paper work and computer work. It was also submitted that a number of major studies debunked the belief that computer use is a common cause of CTS. Overall, there was no single sustained repetitive forceful duty with the hands and wrists in awkward positions that might be considered to contribute to an occupationally induced CTS condition.

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 arose out of and in the course of her work duties. Based on the evidence before us, we are not able to make that finding.

CTS is defined as the impairment of the motor and/or sensory function of the median nerve as it traverses through the carpal tunnel. It is caused either by intrinsic swelling of the median nerve or by extrinsic compression of the median nerve by one of the many surrounding structures of the wrist. CTS has a variety of causes. It can be caused by underlying systemic conditions such as rheumatoid arthritis, osteoarthritis, hypothyroidism and diabetes. Middle aged females, individuals with a high body mass index, smokers and people genetically pre-disposed to the development of CTS are also at increased risk for the development of CTS. It can also be caused by some work activities. There remains considerable debate in the medical literature as to what work factors may cause CTS. Occupational factors most commonly accepted to be associated with CTS include a wrist injury, frequent use of vibrating hand tools or any repetitive, forceful motion with the wrist bent, especially when done for prolonged periods without rest. It is generally considered that the greatest frequency of occupationally related CTS is found where the job duties involve high force and high repetition.

To decide this appeal, the panel must carefully examine the worker’s job duties to determine whether, on a balance of probabilities, they might have caused her CTS.

After considering the evidence before us, the panel is of the opinion that the worker’s CTS is not connected to her work duties, either as a causative factor or as an aggravating or enhancing factor. We come to this conclusion based on the following:

• The job duties identified by the worker are not consistent with the type of duties typically associated with the onset of CTS symptoms. Most of her work did not involve keeping her wrists in a sustained flexed position with use of force. For the most part, the worker’s wrists were in a neutral position, and there was minimal requirement for either high force or high repetition. There were no prolonged periods of loading the forearm muscles without an opportunity to rest.

• There were some aspects of the footcare duties which did involve strain on the wrist, but these did not occupy a significant part of the worker's day. The clipping and positioning was only required for a few minutes at a time, and there was ample opportunity to rest between tasks. The Dremmel tool was vibratory, but was only used occasionally and for only up to 15 minutes at a time.

• The worker described spending about 1 hour per day intermittently on the computer and about 2 hours writing in charts in 2008. The panel does not accept that this amount of handwriting and data entry would be causative of CTS.

• The panel notes the worker had a bilateral CTS condition which was progressing relatively evenly between her two hands, although the right was more pronounced. As the aggravating duties described by the worker involved primarily the right hand, this suggests a non-work related cause for the CTS condition.

• The worker's family physician noted that the worker first reported difficulties with paresthesia in her hands in July 2005. The worker's evidence at the hearing was that she complained to her doctor very soon after the symptoms arose. At that time, the worker had been on a maternity leave, and had been away from the workplace for approximately 5 months. The initial onset of symptoms while she was not regularly performing job duties leads the panel to believe that the CTS is not related to work.