Decision #144/11 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by the Workers Compensation Board ("WCB") to deny the worker's claim for bilateral carpal tunnel syndrome which she related to her work duties in a laundry facility. A hearing was held on September 8, 2011 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On September 8, 2008, the worker filed a claim with the WCB for injuries to her wrists and hands that she related to her job activities in a laundry facility. The worker noted that her job duties were repetitive and she fed laundry into machines all day. Quantity was from 4,000 to 10,000 pieces. The worker indicated that she went for nerve conduction studies and it was confirmed that she had bilateral carpal tunnel syndrome ("CTS"). The worker advised the WCB that she first noticed symptoms about eight months ago which she initially ignored. Then the pain got so bad that she had to seek medical attention. The worker indicated that her supervisor and co-workers were aware of her discomfort.
The employer's accident report indicated that the worker had "pain in both hands and wrists, ongoing for about 12-18 months."
On October 8, 2008, a WCB adjudicator spoke with the worker to gather information related to her specific job duties. The accident employer also provided the WCB with a Physical Demands Analysis of the job duties performed by the worker.
On October 9, 2008, a decision was sent to the worker advising that the WCB was unable to accept responsibility for her claim. The letter stated, in part: "In the opinion of the WCB, the nature of your work does not require high repetition involving full flexion and extension. Although there is some force involved, this is not done in a repetitive manner. You regularly rotate from various machines and handle material that varies in size, shape and weight. The WCB is unable to indentify activities within your work to establish a relationship between the development of bilateral CTS and an accident as defined in Section 1(1)."
In June 2009, the worker's union representative asked for reconsideration of the above decision. The representative indicated that the worker's job duties were consistent with those tasks which are accepted by the WCB to cause CTS. Pictures and a video of the worker's duties were submitted to demonstrate the nature of the work performed by the worker. It was noted that the worker rotated through a variety of machines on a weekly basis, and the same mechanical wrist movements are required for each job task she was performing. There were other workers who performed the same job tasks as the worker and their claims for CTS were accepted by the WCB.
On June 13, 2009, the worker was advised that the WCB had reviewed the photographs and video evidence provided by the union representative and there would be no change to the original decision. It was determined by the adjudicator that a relationship between the diagnosed condition and the job duties had not been established.
A medical report received from the worker's family physician dated January 19, 2010 indicated that the worker first mentioned wrist difficulties on June 9, 2008 and she attributed her bilateral CTS to repetitive movement of her hands at work. The worker had no other risk factors for CTS and was not taking any regular medications.
A WCB medical advisor noted on January 27, 2010 that he reviewed the worker's file and also the video of her work duties. He stated:
…In [the worker's] case, her prior wrist fracture and her smoking history would be considered significant intrinsic factors. Workplace duties that are accepted to potentially contribute to the development of CTS involve repetitive forceful gripping and grasping, and/or forceful wrist movements of flexion/extension. Awkward wrist postures, and vibration and cold exposure are also recognized factors. Having reviewed the workplace duties in [the worker's] case, it is apparent that repetitive grasping and wrist movements are involved in her work on a regular basis. The linens however are dry and do not appear to be of significant weight such that a significant amount of force would be required to move them. While repetitive, the work duties do not appear to involve a significant combination of repetition and force, and therefore would not be considered to be likely to contribute in a significant way to the development of CTS. The workplace duties were not provocative of CTS in the previous 9 years of work, and there is no reason apparent to believe that they became provocative in 2008.
On a balance the combination of factors which culminated in the development of CTS in [the worker's] case does not likely include a significant contribution from her work duties, which while repetitive, do not appear to require the application of a significant degree of force at the wrists and hands.
A decision was sent to the worker dated January 27, 2010 with an outline of the opinion expressed by the WCB medical advisor dated January 27, 2010. The case manager indicated that the worker's job duties did not appear to require the application of a significant degree of force at the wrists and hands. The decision therefore remained the same and no responsibility would be accepted for any wage loss or healthcare expenses incurred.
On February 2, 2010, the worker's union representative appealed the above decision to Review Office. The representative submitted that the worker's job duties involved repetitive force and flexion and awkward wrist positioning, with a significant degree of force at the wrists, hands and fingers. It was submitted that although the worker did have a pre-existing wrist condition, it was likely that her job duties aggravated and/or enhanced her pre-existing condition in accordance with WCB Policy 44.10.20.10.
On February 5, 2010, Review Office advised the worker that her claim was being returned to primary adjudication to arrange for a worksite/job analysis and to rule on the issue concerning whether the worker's job duties aggravated and/or enhanced her pre-existing wrist condition.
On March 24, 2010, a WCB rehabilitation specialist attended the worksite to observe the worker's job duties. The results of his assessment are contained in a memo to file dated May 3, 2010. The specialist concluded his report by stating: "…there is no doubt that this job is material handling. What is noted is that the hands do work on a repetitive, and at times, when dealing with small pieces, that the work and pace is high. However, as noted, forces are light and ranges for the most part are from inner (neutral) to middle ranges of movement."
In a letter dated May 5, 2010, the worker was advised that based on the worksite assessment results, it was the opinion of primary adjudication that an aggravated or enhanced pre-existing wrist condition had not been established. On December 2, 2010, the worker's union representative appealed this decision to Review Office.
On January 6, 2010, Review Office determined that the worker's job duties did not cause her bilateral CTS condition nor was there evidence to suggest that the bilateral CTS was a pre-existing condition that was either aggravated or enhanced by her employment duties. In reaching its decision, Review Office placed weight on the WCB medical advisor's opinion of January 27, 2010 and also considered the worker's job duties described on file by the worker, the job site assessment as seen on the CD and in the photographs. On February 3, 2011, the union representative 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.
Worker’s Position
The worker was accompanied by a union representative at the hearing. It was submitted that in the present case, there was no debate that the worker had bilateral CTS, nor was there any debate that the worker's job involved repetition. The real debate concerned the element of force involved in the worker's duties. The worker gave extensive evidence regarding the elements of her work and it was submitted that there was both force and repetition sufficient to meet the test of CTS causation.
Employer’s Position
An advocate appeared at the hearing on behalf of the employer. It was the employer’s position that the WCB extensively considered the worker's claim and its decision that the claim for bilateral CTS should not be accepted was correct. The employer agreed that the work was fast paced and repetitious, but there was not a great deal of force involved in the job duties. Minimal force was required. In addition, a number of non-work related risk factors associated with the development of CTS were present. It was noted that the worker's condition was bilateral, which is usually indicative of a non-work related case. Further, there was no temporal link between the rise of the CTS and the number of years the worker was on the job. It was therefore submitted that the panel deny the appeal.
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-age females, individuals with 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 bilateral CTS.
After considering the evidence as a whole, we are unable to find that the work duties contributed to the CTS, either causally or as an aggravation. At the hearing, the worker gave significant detail regarding the nature of her job duties and the tasks involved at the various positions through which she rotated. The duties which involved the greatest amount of force were identified as moving large heavy cages on wheels which were stacked with linens, untangling damp, compacted items, and fluffing large piles of linens which were to be fed into machines. In the panel's opinion, these duties were not combined with the type of awkward sustained wrist positioning which is typically associated with the development of CTS. The panel finds that during the course of a week, the worker rotated through a large variety of positions such that she did not perform the same actions on a constant repetitive basis day after day. In addition, there was time for rest cycles.
It is significant that the worker's condition was bilateral in onset as this is often indicative of a non-work-related cause. We also note that after nine months off, the worker returned to her regular duties in July 2010. Her evidence was that after being away from the workplace, her hands had improved and since returning to the workplace, her condition remained better than it had been when she first went off work. If work was causative of her CTS, her condition would have been expected to flare upon return to her regular duties. It did not. At the time of the hearing, the worker had been back in the workplace for a little over a year and while her CTS was still symptomatic, it had not regressed back to the level it had formerly been. Since her return to work, she had not had any more time loss due to her CTS.
Based on the foregoing reasons, the panel is unable on a balance of probabilities to relate the worker’s bilateral carpal tunnel syndrome to the work duties which were being performed by her as a laundry aide. The worker’s appeal is therefore denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 7th day of November, 2011