Decision #118/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that her claim for compensation was not acceptable as the evidence did not establish that she suffered personal injury by an accident arising out of and in the course of her employment. A hearing was held on October 29, 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 for numbness in her last two fingers of her left hand which occurred when she awoke on December 18, 2010. The employer's incident report confirmed the worker's accident description but felt the worker's symptoms were not work-related.

A Chiropractors First Report dated November 1, 2011 outlined the following description of injury: "Driver has been working long hours with few breaks and has slowly developed tingling/numbness in her left hand and cannot straighten the last 2 fingers on the same hand. Increased stress." The chiropractor's diagnosis was a cervical radiculopathy due to subluxation at C7-T1.

On January 25, 2011, a WCB adjudicator spoke with the worker by telephone and the following information was obtained:

  • The worker had no symptoms prior to December 18, 2010.
  • The worker was on her second run of driving a 5 ton truck.
  • The worker left Winnipeg sometime between 7 and 11 p.m. on December 17, 2010. She drove to Regina and then to Saskatoon. She did not have to load or unload the truck. The truck was automatic and was relatively easy to handle. It was trickier to drive the truck over snow or ice so she just slowed down.
  • When the worker arrived in Saskatoon she went to the hotel and then to bed. She did not do anything unusual. When she awoke in the afternoon her ring and pinky finger on her left hand were numb.
  • The worker was not sure what caused her hand symptoms. She thought she may have banged her hand or slept on it the wrong way. She thought it could be due to the cold.
  • When she returned home, the worker went to see her chiropractor and he asked her for the log books. After seeing the log books, the chiropractor told her that her condition was caused by stress.
  • The worker did not have any symptoms in her forearm or elbow.
  • The workplace had been busier than usual. She would get less time off although she did not think of herself as being stressed out.
  • The worker is right hand dominant although she considered herself to be ambidextrous.

In a decision dated January 26, 2011, the worker was advised that the WCB was unable to accept responsibility for her claim. The worker was advised that cervical radiculopathy may be caused by degenerative changes in the neck, congenital narrowing of the spinal canal, herniated discs, tumor, trauma or by any combination of these. As the worker had no symptoms prior to waking upon on December 18, 2010 and a trauma or incident had not been identified that led to the onset of her symptoms, the WCB was unable to establish a relationship between the cervical radiculopathy and an accident "arising out of and in the course of" the work duties.

Subsequent to the decision dated January 26, 2011, the WCB received new medical information which diagnosed the worker's medical condition as severe left ulnar neuropathy which the treating physician felt was due to the worker's job duties of driving.

On June 27, 2011, the worker advised a WCB adjudicator that the left two fingers of her left hand were still numb and that it was a specialist's opinion that her condition was definitely work-related. The worker stated that she can't rest her elbow when driving as she was too short and that she needed to lean all the way to reach the pedals. It was not the same as driving a regular car. The worker's elbows were approximately at 90 degrees when driving. The worker indicated that her employer told her how to position herself in order to drive the company vehicles. The worker said she slept on her back and if she rolls over it was usually onto her right side and not on her left side. The only time she can remember sleeping on her left side was when she was pregnant. She does not sleep on the left side as there is a door on that side in her room.

On July 6, 2011, the worker was advised that the new information had been reviewed and that no change would be made to the original decision.

On July 22, 2011, the worker submitted to Review Office that she had medical support that her condition diagnosed as severe ulnar neuropathy was work-related. The worker noted that in the weeks prior to Christmas, she was one of three drivers. On December 17, 2010, it was extremely cold outside and she hit her hand hard while preparing to fuel the truck. The Ryder truck from Winnipeg to Saskatoon was an extremely rough riding vehicle and her body felt every bump on the highway.

On July 27, 2011, Review Office referred the worker's file back to primary adjudication to consider the new information provided by the worker and to reconsider the original decision to disallow the claim.

In a report dated September 8, 2011, an occupational health physician outlined the opinion that the worker's repetitive and sustained elbow flexion and tight hand-gripping was likely the significant ergonomic factor that precipitated the worker's ulnar neuropathy.

On December 1, 2011, a WCB claims supervisor spoke with the worker about the incident that occurred on December 17, 2010. The worker indicated that she stopped in Regina to fuel her truck and when she climbed down from the truck she banged the side of her left hand (pinky side) on one of the steps. The worker noted that the trucks were quite high and she was only 5'2". She did not mention the incident to anyone at work. The worker indicated that when she drives, she brings her seat as close to the steering wheel as possible so that she can hold the wheel properly and also reach the pedals. She said her hands hold the wheel and her elbows are out at her side. She does not rest her elbows on anything. The supervisor told the worker that he could not change the decision on file as he could not confirm that the worker banged her hand as she did not report the incident. He noted that in his experience, ulnar neuropathy was usually caused from leaning on the elbow and it appeared that she did not do this.

On January 10, 2012, a WCB physical medicine consultant outlined the probable causes and activities related to the diagnosis of focal ulnar neuropathy at the left elbow. The consultant stated:

"Most probable in the current case is that this claimant has an elbow predisposed to ulnar neuropathy (for example a shallow ulnar groove or tight cubital tunnel) and that her night positioning caused acute trauma to the ulnar nerve at the elbow. No probable work related cause has been presented on the file for a focal ulnar neuropathy to have occurred related to work in this case."

By letter dated January 19, 2012, the worker was advised that no change would be made to the decision of January 25, 2011. The adjudicator's position was that the accident described by the worker of hitting her hand before refueling her truck could not be confirmed and therefore this information could not be considered. The adjudicator also referred to the medical opinion expressed by the WCB physical medicine and rehabilitation consultant and advised that there was no evidence of a probable work-related cause for a focal ulnar neuropathy to have occurred related to the worker's employment. On February 20, 2012, the worker appealed the decision to Review Office.

On March 20, 2012, the worker underwent neurolysis of the left ulnar nerve and medial epicondyloplasty.

On April 18, 2012, Review Office confirmed that the worker's claim was not acceptable. Review Office's position was the worker's job duties did not involve repetitive elbow flexion nor tight hand-gripping as the worker indicated the truck was easy to handle. Review Office accepted the medical opinion of the WCB's physical medicine and rehabilitation consultant that the worker's left elbow was predisposed to ulnar neuropathy. It found there was insufficient evidence to support a causal relationship between the worker's left ulnar neuropathy and her work activities. In July 2012, the worker 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 left ulnar neuropathy arose out of and in the course of her employment.

Worker's Position

The worker stated that her doctors have told her that her injury is caused by repetitive work.

The worker responded to questions from the panel. She explained that she is employed as a bus driver but that during the Christmas season in 2010 she took a position with her employer, driving a 5 ton truck to Saskatoon. She said that she had no problems or symptoms either driving to the destination or upon arrival. She did not unload the freight but switched trucks for the return trip to Winnipeg. She checked into a hotel for a break, and upon waking she had numbness in her two fingers on her left hand. She said that she thinks her injury may have arisen from driving a different type of truck. She had driven this type of vehicle only once before.

The worker said that she sleeps on her back and brings her own pillow. On the day in question she had a good sleep and does not feel her sleep posture caused her symptoms.

She described the position of her arms while driving. She demonstrated that her wrists were in a neutral position, her arms were close to her side and went straight to the steering wheel with elbows bent approximately 90 degrees. She said that she was not able to reach the left arm rest with her left elbow, as she would not be able to reach the steering wheel if she did so. She said that moving freight can involve repetitive movement.

The worker said it was cold when she stopped to refuel and that she hit her hand on the truck steps but that it wasn't anything to pay attention to.

She advised that her chiropractor treated her neck and back and that her condition improved with these treatments. She also said that her condition improved with massage treatments.

When asked about driving conditions, she checked her driving log and noted that she did not identify any adverse road or weather conditions on that trip. The worker advised that she had surgery to correct her ulnar nerve problem and that she made a full recovery. She no longer has numbness in her left hand and is back to her regular duties.

Employer's Position

The employer was represented by its Disability Specialist who participated in the hearing by telephone conference call.

The employer representative advised that the employer opposes acceptance of the claim. She reviewed the evidence and concluded that "Both medically and factually, there is no basis for any assertion that this is a work place injury."

The employer representative referred to the treating surgeon's report, noting that several constriction points were surgically repaired. She said this confirms the opinion of the WCB medical advisor who made the diagnosis of left ulna entrapment at elbow. She noted that the WCB medical advisor said the most likely cause of this condition is trauma between the elbow and the shoulder, or a congenital condition and no probable work-related cause was presented on this file for this condition.

The employer representative also referred to the neurodiagnostics report of April 12, 2011 which she said removes the basis for a repetitive condition as a cause. She noted that the worker is right arm dominant and that the worker's left ulna nerve showed significant weakening, while the worker's right ulna nerve was normal. She submitted that as the right arm shows no evidence of a repetitive strain injury, the worker has no repetitive strain injury.

Analysis

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of her employment. In other words, the panel must find that worker's left ulnar neuropathy was related to her work duties. Based on the evidence on file and presented at the hearing, the panel finds, on a balance of probabilities, that the worker's left ulnar neuropathy was not causally related to her work duties.

In making this decision, the panel relies upon the following facts:

· On December 17, 2010 the worker drove a 5 ton truck to Saskatoon; the drive took approximately 11 hours. It was her second time driving this type of truck. The worker advised WCB that "…the truck was automatic and relatively easy to handle."

· The worker's log did not note any difficult driving conditions, requiring her to hold the steering wheel tightly.

· The worker had no symptoms before departing for the destination and no symptoms when she arrived at the destination.

· The worker attended at a hotel for rest before returning to Winnipeg. When she awoke on December 18, 2010 she had numbness in the left two fingers on her left hand.

· The worker had suffered no trauma to her left arm at work or elsewhere.

· The worker is right hand dominant.

· The worker underwent surgery for left ulnar entrapment at the elbow which she reports as successful.

· The surgeon found two constriction points, one at the entry underneath the cubital tunnel and one under the arcade of the FCU fascia. He also found evidence of subluxation of the ulnar nerve over the medial epicondyle due in part to prominent medial head of triceps.

The panel has considered the possible occupational causes advanced by or on behalf of the worker and has concluded that the injury is not caused by the worker's work duties.

The panel reviewed the January 10, 2012 memo from the WCB medical advisor. The medical advisor identified possible causes of ulnar nerve neuropathy including the following occupational causes: 1) High level repetitive flexion of the elbow; and 2) Trauma.

The evidence does not identify that either of these causes were in play in the worker's injury. While the worker described her job as including repetitive movements, the evidence does not support this position. The panel also notes that the worker is right hand dominant and would expect the worker's right hand to have similar symptoms and findings if the job involved significant repetition, but the right arm findings were normal. With respect to trauma, the worker said that she did not have any significant trauma to her left arm. The worker was also unable to identify job duties that involved pressure or compression of the ulnar nerve or extreme flexion of the elbow.

The panel notes that the operating surgeon noted findings consistent with the non-occupational causes of ulnar neuropathy that were identified by the WCB medical advisor. The panel also notes that this possibility was also raised by a neurologist who performed neuro-diagnostic testing on April 12, 2011. His report referenced a number of possible local anatomic factors as the reason for his findings. These included the types of anatomic findings listed in the operative report. In the panel's view, the multiple sites of constriction and subluxation are not consistent with a focal neuropathy.

The panel also notes that the WCB medical advisor opined that "No probable work related cause had been presented on the file for a focal ulnar neuropathy to have occurred related to work in this case." The panel agrees with this opinion.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of November, 2012

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