The Appeal CommissionThe Workers Compensation Act of Manitoba

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 arm difficulties arose out of and in the course of her employment.

Worker’s position

The worker was accompanied by a worker advisor at the hearing. It was submitted that the worker's work duties involved significant flexion, extension, forceful and exertion activities which contributed to the worker's emergence of symptoms and injuries to the wrists and forearms, causing bilateral carpal tunnel syndrome and forearm tendonitis. In this case, the work was physically demanding, which put stressors on an asymptomatic underlying pre-existing condition in the wrists and arms and made them prone to injury.

At the hearing, the worker's evidence was that prior to the start of her employment, she had no problems with her hands, wrists or forearms. While at work, she started to have pain in her left arm, from her knuckles up to her shoulder. One aspect of her job involved removing cash collection cans from a series of gaming machines at a fast pace. She indicated that her knuckles were where she got most of the beating and that they would become so swollen that you couldn't see the lines. Her wrist also took the brunt of the impact as that was where she would do the pushing and pulling and lifting for the whole arm. One day, she was pulling cans out of machines with her right hand, while her left hand held open a spring loaded door. She then suddenly experienced a flare of burning pain, which wouldn't stop. The pain became bilateral and continues to the present time.

Overall, it was submitted that the evidence supported on a balance of probabilities that the worker's symptoms and diagnoses of bilateral carpal tunnel syndrome and common extensor tendonitis did emerge as a result of her work duties. Therefore the worker's claim should be accepted.

Employer's position

Two representatives from the employer attended the hearing on behalf of the employer. The employer agreed with the WCB's findings. It was submitted that the worker's job involved rotating into four different positions. The employer denied that the weights of the cans would be as high as 25 lbs (as alleged by the worker at the hearing), but did acknowledge that the work of pulling the cans was physical. It was noted that personal life activities and prior work history could have affected the worker's claim and it was noted that she had worked only 34 days with the employer on a part-time basis. The employer challenged the probability that the worker's condition arose from her employment with the employer.

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 carpal tunnel syndrome and/or forearm tendonitis 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.

At the hearing, the panel reviewed the duties being performed by the worker during her employment with the accident employer. The worker was asked to comment on the accuracy of the information contained in the jobsite assessment dated March 19, 2010 which was prepared by WCB rehabilitation specialists. There were areas where the worker disagreed with the jobsite assessment. With respect to the can weights, the worker noted the task of pulling the poker table cans was heavier than described. The poker cans were weighed by the rehabilitation specialists at 7.65 pounds, but the worker pointed out that this was on a weekday, so they would be lighter. A weekend poker can would probably weigh three times that amount. The cans would be pulled once per shift and there could be up to five poker tables open.

Another heavy job was in the count room where there were large Tupperware bins full of tickets which had to be lifted. These bins weighed at least 20 pounds and had to be placed on shelves above her head. Depending on the day, the worker would have to lift these boxes four to six times in the course of a shift.

Pushing the carts was another task which was identified as a difficult job on the body and wrists. The carts would be full and awkward to move and there was very little space in which to maneuver.

According to the worker advisor's submission, there are two medical conditions which the worker alleges resulted from her employment. After considering the evidence from the file and the hearing, the panel is not satisfied on a balance of probabilities that either condition resulted from the performance of her duties.

With respect to the bilateral carpal tunnel syndrome, the occupational factors most commonly accepted to be associated with carpal tunnel syndrome 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 carpal tunnel syndrome is found where the job duties involve high force and high repetition. In the panel's opinion, the worker's job duties did not reflect a sufficient degree of these occupational factors to be causative of carpal tunnel syndrome. While there was some awkward wrist movement involved when flipping cans during the soft count, this was only performed intermittently on a limited basis. The action was not performed enough times for the panel to be satisfied that there is a causative relationship.

With respect to the forearm tendonitis, the panel again notes that the job duties did not involve sustained and repetitive use of the wrists for extended periods of time without opportunity for rest. The tasks the worker performed were done largely with wrists in a neutral position. The weights involved in the pull duties generally did not exceed 5 pounds. In the cases where heavier weights and force were involved (poker table cans, lifting Tupperware bins, and maneuvering carts), the tasks were only performed on a very occasional basis, and depending on the job rotation, may not be performed at all during a particular shift. Even when taking into account the fact that the worker was unaccustomed to this type of work, we find that the loads were not significant.

The regular rotation of workers through different positions also weighs against finding a causative relationship. The employees would work in teams of four and would rotate throughout four positions so that during the course of a shift, each employee would do each position once for approximately 30-45 minutes. The panel finds that there was a wide variation of duties and actions within the planned rotations.

The panel has concerns with respect to the absence of a diagnosis of forearm tendonitis until the worker saw a neurologist on August 26, 2009, over five months after the initial onset of her symptoms. In the interim, she had been examined by two family practitioners and a sports medicine physician for hand and forearm pain, yet none of these doctors mention a diagnosis of tendonitis. At the time of the WCB call-in examination, the tests for common extensor tendonitis were negative.

At the hearing of the appeal on August 23, 2011, the worker advised that she had been assessed by an occupational health physician a few days prior, on August 18, 2011. Following the hearing, the panel requested a copy of the report covering the recent assessment. In response, the panel was provided with a report dated December 1, 2011 which included a further attendance with the worker post-hearing, and supplementary information from the worker. The occupational health physician opined that the worker's duties: "involved very repetitive pinching of keys, turning locks, pushing and pulling against metal handles in spring locked compartment … her description highlights multiple problems with awkward positions, stuck locks and cans requiring force to release, in addition to the significant repetitive loads being placed along the kinetic chain of the arm, from finger flexor tendons to upper arm and shoulder musculature." With respect to diagnosis, the occupational health physician stated: "The principal diagnosis on record in the WCB claim file is carpal tunnel syndrome, but there were definitely other issues and diagnoses at play: the finger contusions and local swelling around the knuckles and hand, and forearm tendonitis was also present." The report concluded: "In summary there are multiple factors in her intensive work duties led (sic) to multiple diagnoses."

In the panel's opinion, notably absent in the report is acknowledgement of the rotation between the various duties and the rest cycles between tasks. The panel does not agree with the occupational health physician's assumption that the worker was subjected to "significant repetitive loads". The panel also notes that the worker's evidence at the hearing was that virtually all of the pulling of cans was performed with her right hand. Despite this, it was the worker's left arm which first developed the sharp pain. There was very limited load placed on the left arm during the pull duties. The worker indicated that the left hand would be used to keep spring loaded doors open while the cans were being pulled with the right hand, but only about 12 out of the 600 machines had spring loaded doors. Given the differences in the interpretations of the job duties, the panel is inclined to place less weight on the conclusions contained in the occupational health physician's report.

Overall, the panel does not view the job duties performed during either the pull or the soft count rotations as involving the types of loading, stresses and repetition necessary to cause the worker's bilateral arm difficulties. We are therefore unable on a balance of probabilities to relate the worker’s bilateral carpal tunnel syndrome and forearm tendonitis to the work duties which were being performed by her as a soft count clerk. The worker’s appeal is therefore denied.