Decision #43/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Review Office of the Workers Compensation Board ("WCB") which determined that his left-sided carpal tunnel syndrome ("CTS") did not arise out and in the course of his employment as a truck driver. A hearing was held on March 8, 2012 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 July 9, 2011, stating that he had surgery to his right hand in 2000 and now he was having problems with his left hand. The employer's injury report dated June 9, 2011 indicated that the worker was complaining of some discomfort in his left hand and he proceeded to seek treatment. The employer did not know if this was a work-related injury.
On June 14, 2011, a plastic surgeon wrote the worker's family physician to advise that he saw the worker for severe left-sided carpal tunnel syndrome ("CTS"). The surgeon noted that the worker had the right wrist side done under WCB and he told the worker to file a compensation claim for his left side.
The worker advised a WCB adjudicator on June 21, 2011 that he first noticed symptoms about five to six months ago and they have significantly progressed. The worker said he was familiar with the symptoms as he previously had surgery on his right hand for the same reason. The worker had been employed with his current employer for about five years as a truck driver. He drove from 7:00 a.m. to around 6:00 p.m. every day. There were no changes to his work duties. The pain was in his three fingers and thumb. The worker said he complained to his co-workers and his employer was aware of his condition.
The worker spoke with the WCB adjudicator again on July 6, 2011. The worker said he drove a 10 speed standard semi-trailer. He unloads concrete and other construction material by a machine. The vehicle was a long wheel base truck. When driving the truck, his right hand is changing the speed and his left hand is on the steering wheel. He does not rest his left elbow on the window frame. The worker noted there was a lot of vibration in the truck but he does not notice it because he has been driving for a long time. It was a very long truck and it was hard to operate.
On July 12, 2011, the employer confirmed that the worker drove a semi truck and was a Class I truck driver. There were no maintenance issues with the vehicle. The worker drove in the city on a job-to-job basis delivering product. He spent 10 hours driving per day. The employer was not sure how much force was needed for gripping the steering wheel. It was a big wheel with power steering.
On July 12, 2011, the worker was advised that his claim for compensation had been denied as it was difficult to relate the onset of his left CTS condition to the low force work demands which he performed without incident for many years. "The new inciting incident or influence which "triggered" the onset of symptoms is not apparent. In particular a specific provocative workplace factor is not recognized."
On July 15, 2011 the worker appealed the above decision to Review Office. The worker indicated that that his own doctor and a plastic surgeon support that his CTS condition was related to driving truck for over 40 years. The worker noted that he drove a 1995 Freightliner with over 2 million miles on it and it vibrated and shook. The air ride seat did not work properly. The worker noted that the information provided by the employer was from a payroll person who did not know much about the trucks. On July 25, 2011, Review Office referred the case back to primary adjudication to further investigate the claim based on the information submitted by the worker.
On August 29, 2011, the WCB case manager spoke with an employer representative who indicated that the worker never complained about his left hand difficulties nor did he relate it to any incident directly and never mentioned the cause of it. The first time he knew of it was when the worker filed his claim.
In a report dated September 2, 2011, the attending physician advised the WCB that the worker was initially seen on March 16, 2011 complaining of tingling and paraesthesia affecting his left hand. A nerve conduction study confirmed evidence of left sided CTS and surgery was carried out on August 17, 2011.
On September 8, 2011, the worker was advised that after reviewing the additional information from both his employer and treating medical providers, no change would be made to the original decision.
On November 9, 2011, Review Office concluded that on a balance of probabilities, it was unable to establish that the worker sustained an accident as defined in the Act. Review Office noted that the worker's CTS symptoms only began in January/February 2011 and that the medical evidence showed that he first sought medical attention on March 16, 2011. It noted that the worker developed right CTS symptoms in 2000 due to a traumatic event and that it did not arise out of his truck driving duties in general. It found that the job duties identified by the worker were not consistent with the type of duties typically associated with the onset of CTS symptoms. On November 22, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
This appeal deals with claims acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s left wrist condition arose out of and in the course of his employment.
Worker's Position
The worker attended the hearing and explained his position to the panel.
The worker advised there were 3 factors which influenced his decision to apply for WCB benefits. The factors were:
- He injured his right wrist in 2000 while working construction. His claim was accepted and he had carpal tunnel release surgery.
- The plastic surgeon treating his wrist directed him to apply. He said he had not been inclined to apply but as the surgeon was a specialist in industrial disease and had successfully operated on his right wrist, he thought that the claim must be related to his work.
- His employer denied the worker's assertion that the truck he drove had significant vibrations.
The worker said that the vibrations from driving the employer's truck caused his wrist problem. He said that he drove various trucks for the employer including an older (1995) model which had a longer wheel base. He said it was more difficult to drive on city streets and to maneuver at urban worksites. The worker said the older truck was diesel powered which made it vibrate more than other vehicles.
In answer to questions, the worker confirmed that he drove primarily on paved roads within the city. He also said that he did not drive many miles. The worker said that the truck he drove had a larger steering wheel but that it was not hard to steer. In the city, he steered with his left hand and shifted with his right hand. He said the hardest part of driving the truck was backing up. He used both hands to do this. He advised that the suspension on the truck was OK.
With respect to his duties, he said that he attended worksites to pick up debris from demolition projects. He explained that he would often have to wait in line for his turn to be loaded. He would then deliver the load to a disposal site or concrete crusher site. He worked 12 hour days and said that on a typical day he could be idling or waiting for up to 8 hours. During the wait time he might have his hand on the wheel, or arm resting on the window or armrest. He suggested that the vibration during idling was a cause of his left wrist condition.
Regarding symptoms, he said that he had symptoms in 2005 and was referred by his family physician to a plastic surgeon. He advised that he was long haul driving at the time and was in the southern United States so was not able to attend the appointment. When he returned home, his symptoms had improved so he did not follow up with the surgeon or his family physician. He started working for the accident employer after he returned from the United States. He said that his symptoms fluctuated. In 2010, his symptoms worsened and he was referred to the plastic surgeon who had performed the surgery on his right wrist in May 2001.
When asked whether the surgeon was aware of the worker's current duties the worker responded:
"No, he never asked me any questions. He only asked me what I was doing. I said, well, I’m a truck driver. He asked me, How long have you been driving? I said … 46 years. And then in 2000 the same thing; he asked me the same question… "
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether the worker's claim is acceptable. For the worker's appeal to be acceptable the panel must find, on a balance of probabilities, that the worker's duties either:
1. caused the worker's left carpal tunnel condition, or;
2. aggravated or enhanced a pre-existing carpal tunnel condition.
We were not able to make these findings. We find that the worker's claim is not acceptable. We find that the worker had a pre-existing carpal tunnel condition when he commenced employment with the employer in 2005 and that his work duties did not aggravate or enhance this condition.
Regarding our finding that the worker's left carpal tunnel condition was not caused by his employment with the accident employer, we note the worker's evidence that while working for another employer in 2005, he was referred to a specialist for consideration of carpal tunnel surgery on his left wrist. The worker advised that he did not attend the appointment because he was out of town delivering a load in the southern United States. He said that when he returned to Canada his wrist bothered him less so he did not seek further treatment. It is apparent from his evidence that he had the symptoms of carpal tunnel syndrome in 2005 before he commenced work with the accident employer. On the basis of this evidence we have concluded that the worker had a pre-existing condition in his left wrist and that this condition was not caused by his duties with the accident employer.
We have considered whether the worker's pre-existing condition was aggravated or enhanced by his work duties with the employer. The worker's duties involved picking up and hauling debris in a large truck. The worker attributed his condition to the vibration of the truck while idling. We are not able to find that this vibration was sufficient to aggravate or enhance the worker's pre-existing carpal tunnel syndrome.
Nor did we find that his duties of driving the truck, under the circumstances he described, aggravated or enhanced his carpal tunnel syndrome. The worker described the position of his left hand while driving. We find, based on the worker's evidence that his wrist was in a neutral position most of the time while he was driving and that the worker's driving duties required low force items of gripping or no wrist movement. We do not find this to be a factor in the worsening of the worker's left carpal tunnel syndrome. We also note that the evidence does not identify a significant incident that would trigger the worker's symptoms.
At the hearing, the worker explained that his surgeon told him to file a claim because carpal tunnel syndrome is an industrial disease. We note that in 2001 the surgeon treated the worker's right wrist carpal tunnel syndrome which in that claim was caused by a traumatic accident. The worker confirmed that the surgeon did not ask him about his current duties but was aware the worker had driven a truck for 46 years. We are not able to give weight to the surgeon's opinion as to causation, as we find the surgeon was not aware of the worker's current duties.
We are not able to find any occupational risk factors arising from the worker's employment that would cause, aggravate or enhance the worker's left wrist carpal tunnel syndrome. Accordingly the claim is not acceptable and the appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 3rd day of April, 2012