The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's bilateral wrist diagnosis was not caused by her employment as a custodian. A hearing was held on May 3, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on April 9, 2010 for injury to both wrists which she related to the following job duties as a caretaker:

• Using a long weed whacker with both hand that vibrates;
• Grass mowing with a riding lawn mower;
• Shoveling soil and dragging baseball diamonds;
• Picking up garbage;
• Shovel snow, clean rinks and make ice;
• Drag a pipe around to flood the rink;
• Painting the building inside and ceilings;
• Sweeping and washing floors, walls and windows; and
• Cleaning bathrooms.

The worker advised the WCB that she first noticed symptoms in August 2008. She experienced occasional aching, numbness and tingling. She noted that her symptoms increased in intensity and frequency. She started to have decreased grip strength and was unable to sleep because the pain would wake her up. The worker said her fingers were constantly cold, tingling and numb. She felt a constant ache in her upper extremities. The worker reported that she complained to her manager constantly and told him that she was too sore to work and could not keep up with the heavy labour.

Medical information showed the worker attended a physician on January 14, 2010 for pain in both shoulders and neck NYD (not yet diagnosed).

On February 23, 2010 another physician reported a history of "diffuse pain and aching in upper limbs as well as the shoulders and upper back for over 5 years. She states these symptoms in the upper limbs are somewhat worse on the left than on the right…she describes numbness of the fingers and paresthesia which wake her up throughout the night. She states digits 3 and 4 are particularly affected in both hands. Using her hands and arms aggravates the symptoms. She states she has been assessed for "carpal tunnel syndrome" on 2 occasions in the past, most recently approximately 2 years ago."

On April 18, 2010, another physician reported that the worker had a three year history of worsening carpal tunnel syndrome (“CTS”).

On April 21, 2010, the worker advised a WCB adjudicator that she did similar work with another facility for about 6 years before she started her current employment in November 2007. From the fall of 2007 to the spring of 2008, she did prep work for painting such as washing walls by hand, stripping and waxing floors by hand, used a buffer for the floors and the daily cleaning of bathrooms. In the winter she was responsible for snow removal and used a snow blower that vibrated. She shoveled and flooded the rinks by hand using a long hose. From the spring through fall she spent most of her day weed whacking, cutting grass, dragging four baseball diamonds, shoveling soil, cleaning bathrooms, and other physical tasks.

On April 27, 2010, the worker's manager advised the WCB that he could not recall whether the worker made complaints when she first started her employment. He confirmed that the worker spent the first few months prepping and painting and that she cleaned washrooms daily all year around. During the spring and summer season, she did 80% of the work outside by riding lawnmower (they have 11 acres) and the remaining 20% was spent on other tasks such as dragging diamonds, shoveling soil, weed whacking.

On May 11, 2010, the WCB denied responsibility for the worker's claim. It was the WCB's position that the worker's job duties were not the cause of the development of bilateral CTS. Note was made that the worker performed a variety of duties throughout the course of the day.

The WCB accepted that certain aspects of the worker's duties would make CTS more symptomatic but that this did not constitute an "aggravation" or "personal injury by an accident" arising out of and in the course of her employment.

On August 31, 2010, the worker appealed the above decision to Review Office and submitted a detailed copy of her job description. On September 8, 2010, Review Office referred the case back to primary adjudication to consider the new information.

A WCB orthopaedic consultant was asked to review the file and to comment on whether the anatomical movements of the worker's job duties would lead to the development of bilateral CTS. On September 30, 2010, the consultant noted that based on the job description supplied by the worker, the tasks were multiple and were varied rather than repetitive. The use of a vacuum cleaner and a floor buffing machine would probably not cause sufficient repetitive vibration to be a significant cause of CTS. He noted that the job duties did not involve activities requiring repetitive forceful grasping, constant use of vibrating hand tools and repetitive hand and wrist flexion against resistance which were known work related causes that may contribute to the development of CTS.

On October 5, 2010, the worker was advised that no change would be made to the May 12, 2010 decision based on the opinion expressed by the WCB orthopaedic consultant. The case was then returned to Review Office for consideration at the worker's request.

In a decision dated November 18, 2010, Review Office determined that the worker's claim was not acceptable. Review Office noted that the worker's condition was bilateral, which is according to medical literature, more suggestive of a systemic cause and was worse in her non-dominant left hand. On the basis of all available evidence including the opinion of the WCB orthopaedic consultant, Review Office believed that the worker's CTS condition was not caused by her employment as a custodian. On December 21, 2010, a worker advisor appealed Review Office's decision and a hearing was arranged. In April 2011, the worker advisor submitted a report from an occupational health physician dated February 1, 2011.

Following the hearing that took place on May 3, 2011, the appeal panel requested additional information from the worker's family physician. The panel also requested a copy of the worker's previous compensation claims from 2007 and 2008 (the worker advisor assisting the worker already had a copy of these two claims prior to the hearing). Information from the treating physician was received on May 18, 2011 and was forwarded to the interested parties for comment. On June 8, 2011, the panel met further to discuss the case and rendered its final decision.

Reasons

Reasons:

The worker in this case is seeking to establish a WCB claim for her bilateral wrist problems as being caused by her job duties at a recreation centre.

Applicable legislation:

Subsections 1(1) and 4(1) of The Workers Compensation Act (the Act) set out the legal framework under which claims for injuries can be accepted by the Board. These provisions state that the worker must have suffered an accident arising out of and in the course of her employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

In this case, the worker's appeal will turn on the question of causation. She has bilateral wrist problems. Did these problems arise out of and in the course of her employment?

Worker’s evidence and argument:

The worker was assisted at the hearing by a worker advisor. Their position was that the worker’s job duties at a recreation centre were sufficient to cause the development of carpal tunnel syndrome in each of her wrists. In the alternative, the worker advisor argued that the worker had a pre-existing bilateral CTS condition which was aggravated or enhanced by the job duties performed by the worker.

During the hearing, there was considerable review, discussion and questioning, both by the worker's advocate and by the panel members, as to the exact nature, duration, and timing of the worker's job duties at two different recreation centres where she had been employed in recent years. Particular emphasis was placed on the worker's job duties in August 2008 and subsequent to that period of time, but job duties prior to that date were reviewed as well. Starting in November 2007, through the following winter, she had worked on interior renovations of a recreation centre including removal of baseboards, stripping of paints and varnishes, and restoration. She was also required to participate in the installation and repair of outdoor hockey rinks and flood and maintain the ice surfaces over the winter. The following spring and summer, up to and through August 2008, the worker reverted to her usual outdoor responsibilities which included the use of a riding mower, a power mower, and "weed whacking" which involved the use of a gas-powered whacker that uses a spinning wire to cut down weeds around trees and posts. The weight of the machine was borne in part by a shoulder harness while her hands were used to manipulate the machine in the desired directions. The worker advisor submitted that the worker's height required her to hold the machine in an awkward position, and that there was significant vibration from the equipment.

The worker placed particular emphasis on the weed whacker job as contributing to the development of CTS in August 2008.

Employer's position:

The employer did not participate at the hearing.

Analysis

For the worker to succeed on her appeal, the panel would have to find that her bilateral CTS condition was caused by her job duties at a recreation centre. More specifically, the panel would have to find, separately, that her right wrist and her left wrist were each exposed to job duties that could have led to the development of CTS in each of her wrists. The panel was not able to reach this conclusion on a balance of probabilities, based on the analysis that follows.

The panel notes that an assessment of claims for CTS is best undertaken based on an understanding of the medical condition itself, and in particular, what can cause it (its etiologies). Once that is done, the panel can then assess the job duties and see if the conditions are present in the workplace to have caused the particular medical condition (that is, is there a biologically plausible link between the two?).

Dealing firstly with the apparent diagnosis in this case, CTS is a unique medical condition that can arise from work-related activities, and also from non-work related factors. Medical literature points to such factors as age (40s and up), gender (female), body mass index, diabetes and hypothyroidism amongst others, as statistically significant factors that can lead to the development of CTS in the general population, in the absence of any work-related cause. The literature also suggests that many CTS cases are idiopathic in origin (that is, they have no known cause), and that up to 50% of diagnosed CTS cases may fall into this category. These other etiologies are noted here only for the purpose of acknowledging that there can be non-work-related causes for CTS as well as work-related causes.

One of the causes of CTS can certainly be work duties. Where work duties are suggested to be the source of the problem, there is considerable medical literature focusing on the specific types and frequencies of body mechanics that could lead to the development of CTS. It does not simply arise out of general physical work.

The factors most commonly cited as leading to the development of CTS are high force/high repetition activities involving the hands or activities involved with awkward bending of the wrist or forceful pinching and gripping, or direct pressure on the carpal tunnel area of the palm or wrist. Of decreasing causal significance are high force/low repetition activities of the hands, followed by low force/high repetition activities.

The medical literature shows that CTS cases are considered to be “acute” events with an accumulation of micro-traumas over time. This stands in contrast to an "occupational disease," a different type of "accident" under the Act, where claims may be established by demonstrating significant increases in the prevalence of a particular disease in a specific workforce in a specific industry in comparison to a general population.

Because of the various potential sources of this particular condition, the analysis of CTS claims requires an examination of what specific job duties a worker is performing, and how (and how often and how long) the worker performed them. These potential risk factors are then compared to the upper extremity forces typically associated with the development of CTS.

In cases such as this one, where a worker presents with a bilateral CTS condition, the panel notes that bilateral CTS is not a common phenomenon in terms of work-related causation, especially where the onset of the condition in both hands is more or less concurrent; most people use one hand or arm more than the other, or do different tasks with each for different amounts of time and different rest cycles. As such, the workplace exposures to the two hands/wrists are usually different. For these reasons, the bilateral onset of a CTS condition is strongly suggestive of a systemic non-work-related source, but it can nonetheless arise from work, if the evidence shows that both hands and wrists were each exposed to the types of occupational hazards that could lead to the development of CTS in each hand. Accordingly, the panel, in its review of the worker's job duties, has focused on the work duties as they might affect the right and left hand in its consideration of a work-related cause.

After considering the evidence before us, including the file, the hearing, and the evidence obtained afterwards, the panel finds, on a balance of probabilities, that the worker's job duties are not causative of her bilateral CTS condition, and in the alternative, did not aggravate or enhance her pre-existing CTS condition. Our reasons follow.

The panel has significant concerns regarding the "age" of the worker's CTS symptoms. While the worker's Report of Injury states that she first noticed the symptoms in August 2008, a different physician's report of February 23, 2010 notes the worker's history that she had that the worker had been assessed for CTS on two occasions in the past, the most recent two years earlier. Another physician, on April 18, 2010, reported a three year history. As noted earlier, the panel had considerable difficulty with the time lines on this file, as well as the worker's uncertainty as to the number of times she had undergone a (usually memorable and painful) nerve conduction study. For these reasons, the panel sought out the records of the worker's prior physician, who had retired from practice in approximately 2009. These records played a significant role in our consideration of this matter, and in particular our conclusion that the worker had a significant and ongoing bilateral CTS condition going back at least as far as 2001:

• As early as September 2001, the worker was complaining of right shoulder/elbow/wrist problems that are "also left sided now" with an apparent referral to a sports medicine physician noted. A narrative report from a sports medicine specialist dated October 2, 2001 notes that Tinel's sign was positive in both wrists, and that Phalen's tests was positive, more so on the right than on the left. On this basis, the specialist concluded that the worker's symptoms might be the result of bilateral CTS with associated soft tissue pain. He recommended neutral wrist splints to be worn at night, and at work if possible.
•  Her doctor's November 2001 notation refers to the worker's use of night splints, and that her wrists were slightly better.
•  A January 2003 notation suggests left greater than right arm/shoulder pain and hand stiffness, and that glucosamine helps. Worker was using night splints at that time. Her doctor planned nerve conduction studies. While the results are not on the file, a May 9, 2003 note refers to a diagnosis of a mild bilateral carpal tunnel syndrome, with the worker advised to use night splints and NSAIDs. This was five years prior to the claimed August 2008 onset of CTS symptoms.
•  A January 16, 2007 notation refers to ongoing complaints to hand/arm/shoulder pain, worse, using night splints.
•  The next file notation is close to the period under consideration. A September 25, 2007 note refers to an employment (with the same employer) at a different (prior) recreation centre where the worker was performing duties moving and stacking tables. The notes refer to an increased workload, and left shoulder pain. (This was the subject of a separate WCB claim). There is no mention of wrist/hand problems at that time.
• A July 7, 2008 notation refers to right shoulder/arm/elbow/forearm and fingers pain keeping the worker up. A September 2008 note refers to the worker's relocation to a second recreation centre (the location from which this claim was generated), and to spray painting four hours a day. There is a general reference that the doctor's plan was to treat as an overuse syndrome.
•  An October 9, 2008 visit is silent as to any musculoskeletal complaints. The worker had a complete physical on January 20, 2009 where the doctor performs a musculoskeletal exam and notes that the worker's arms/hands were improved, no nocturnal symptoms, and did have a flare up after painting all day. She was doing full duties "at her pace."
• April 8, 2009, the doctor's notes indicate "improved, but now L fingers numb à dropped brush from painting. Variable day to day."
• The doctor's file also contained documentation about diagnostic testing done on the worker. A March 26, 2007 nerve conduction study by a physical medicine and rehabilitation specialist indicates that the electrical sensory criteria for CTS were met bilaterally, while the motor criteria were not fulfilled. The report references an earlier NCS study performed in 2003 and states that the overall findings (in 2007) appear to be similar to the study performed in 2003.

The panel finds that the worker had a significant history of CTS going back at least to 2001, seven years prior to the 2008 claim. The panel notes as well that all reports on file suggest that the condition was bilateral, right from the outset, with the condition variously more symptomatic on the right or left side.

The panel also notes that the attending physician's notes provide timelines as to the accident history than that provided by the worker to the WCB. As noted earlier, the panel places greater weight on the doctor's records in this regard. His notes disclose that the worker had been seen a few times in late 2008 and early 2009, and that the progression of symptoms that she described at the hearing (of constant and increasing symptoms) does not accord with the doctor's notes which actually note a decline of symptoms in that period of time, particularly, the notes in the complete examination performed on January 20, 2009. We find that there is no continuity of symptoms between the claimed start of symptoms in August 2008 and the report of injury filed in April 2010. Rather, the best medical evidence is that the symptoms worsened significantly in both wrists in February 2010.

As noted above, the panel undertook an extensive review of the job duties that the worker performed. It is the panel's view that none of the job duties described as being present in 2008 were causative of the worker's bilateral CTS condition. As well, those job duties did not cause an aggravation or an enhancement of the worker's pre-existing bilateral CTS condition. In this regard, the panel notes that the weed whacking job, which the worker suggests was a primary cause, was in fact one of the few two-handed jobs performed by the worker. However, it was performed with the wrists in essentially neutral positions, the weight of the machine was primarily borne on the shoulders which removed the amount of forceful gripping that might be required, and the vibration would not be such as to cause damage to the medial nerve in the wrist area. The panel also notes that there were no complaints ever made by the worker to her doctor, during the periods when she was doing the weed whacking job, of this particular task being the cause of her problems, or of her ever making changes in those job duties to get away from this particular problem. The only job duties referenced in the doctor's notes were spray painting (a one-handed job), and the worker dropping a brush because of her problem. As for the other jobs performed by the worker, the panel has determined that they are either one-handed jobs or involve very limited periods of time where there is forceful gripping or flexion/extension of the wrists around which there are significant rest/recovery cycles. Accordingly, none of these other jobs would likely be causative of the worker's condition. Her CTS condition is bilateral, and we would have to find job duties for the right wrist and job duties for the left wrist in order for the bilateral condition to be work-related. The evidence does not support this finding.

It is the view of the panel that the worker had a significant and longstanding bilateral CTS condition that waxed and waned over the years. While the worker may have had increased symptoms at work (much as she would in her activities of daily living), her CTS condition was not caused by, or aggravated or enhanced by her job duties.

Based on this analysis, the panel has concluded on a balance of probabilities that the worker did not suffer an accident arising out of and in the course of her job duties. Accordingly, the worker's appeal is dismissed.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 6th day of July, 2011