Decision #123/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his bilateral hand condition did not arise out of and in the course of his employment as an incinerator operator. A hearing was held on September 20, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On August 3, 2011, the worker filed a claim with the WCB for injury to both hands which he related to the nature of his job duties that were described as follows: collecting and dumping garbage from work stations into an 8 foot stainless steel cart and then into a 24 foot trailer. The worker reported that he first noticed symptoms around April 2011. It started in his right hand with soreness in his pinky to the middle finger. Then about one month later, the same symptoms developed in his left hand from the index finger to the ring finger. The worker reported that he did not seek immediate medical attention as he thought his hands would get better. He reported his difficulties to the employer's occupational health nurse on August 2, 2011. The worker also indicated that he was diagnosed with carpal tunnel syndrome about 11 years ago and that he had a WCB claim. He did not undergo surgery but did attend physiotherapy treatments.

The Employer's Accident Report dated August 10, 2011 indicated that no workplace related injury was reported by the worker. The employer noted that after they received a request for information from the WCB on August 3, 2011 regarding an injury, a supervisor spoke to the worker on August 3, 2011 about his hands and asked him if he had injured them at work. The worker said he didn't think so and he did not fill out a green card. The worker thought that it happened 10 to 12 years ago. Information obtained from the occupational health nurse was that the worker spoke to her on August 2, 2011 with a concern about his hands and wrists. The worker indicated that he had carpal tunnel to both hands/wrists and was told by his doctor that he needed surgery. The worker noted that he first saw his doctor in mid-April with complaints of pain and was told at that time it was carpal tunnel syndrome but he had been delaying the surgical consult. The worker felt it was related to his job tasks. The employer indicated that the information provided to the occupational health nurse conflicted with what the worker told his supervisor.

On August 11, 2011, a WCB adjudicator spoke with the worker and obtained information related to the onset of his hand difficulties and his prior medical history. With respect to work history, the worker noted that he commenced employment eight years ago and in November 2010 his work duties increased. He was also responsible for daily sweeping, mopping and vacuuming of five elevators and elevator landings. The worker described his main responsibilities as follows:

  • collecting and disposing of all types of waste/garbage/recycling and biohazard materials from all areas of the hospital.
  • 50% of his day was picking up and disposing of garbage. He did garbage runs several times during his shift. It involved walking through the facility and pushing the garbage cart from department to department. The cart was 8 feet long and less than 5 feet tall. He could easily see over the cart. The cart had side rails which he used to push the cart. The items are taken outside the building. The garbage bags weighed from 4 oz to 60 lbs. Garbage runs were done four times a day. The cart was then taken to the basement and each bag was either thrown into the trucks or into recycling bins.
  • loading the incinerator almost 7 times per shift.
  • raking and shoveling ash out of the incinerator daily. This task took 15 to 20 minutes to complete.
  • weighing each biohazard container and then transferring them to the incinerator room. All of the containers together weighed a total of 100-400 lbs. Each container weighed from 1 - 60 lbs.

On September 9, 2011, the treating physician advised the WCB adjudicator that the worker was first seen on March 22, 2011 for middle ring finger difficulties of his right hand. The physician indicated that the worker did not provide a work-related accident history to account for the onset of his right middle finger difficulties. He stated that his symptoms were first experienced about 2 months prior to his initial visit. The diagnosis queried was right middle finger trigger finger.

In a doctor first report dated August 29, 2011, the treating physician reported that the worker was seen on August 2, 2011 and the worker's description of injury was repetitive work duties. The diagnosis was diffuse tendonitis both forearms and trigger fingers (right third, fourth and fifth digits and left hand second, third and fourth digits.)

In a report dated August 17, 2011, a physiotherapist reported that the worker had been attending treatment for work-related bilateral trigger fingers. Although the left hand was improving, the right fingers still triggered, especially the 3rd and 4th digits.

On August 29, 2011, the treating physician reported that the worker was seen on August 19, 2011 and that he continued to have pain in both forearms and triggering of the fingers.

By letter dated September 13, 2011, the worker was advised that after reviewing the nature of his job duties and the medical evidence provided, his claim for compensation was not acceptable. The adjudicator noted that although the worker's job duties were repetitive, the movements described would not be considered highly forceful nor did they involve movements consistent with the known causative factors contributing to the development of his condition. It was therefore the opinion of the WCB that a direct causal relationship between the development of his bilateral hand difficulties and the performance of his job duties had not been established.

On November 24, 2011, a worker advisor submitted to Review Office that the worker's bilateral hand difficulties arose during the course of his employment. The worker advisor referred to the following evidence to support acceptance of the claim:

  • the worker reported the onset of his bilateral hand pain and stiffness while performing his duties in April 2011 which he attributed to the repetitive use of his hands while performing his duties.
  • the worker stated that his work duties increased in November 2010 and that his work activities required the use of both hands to grip the handles.
  • the worker's regular duties required that he pick up and dispose of hundreds of bags in each shift and that he picked them up by grasping the top of the bag and clenching them. The bags weighed between a few ounces to 50 pounds.
  • an article on Trigger Finger states that this condition can be caused from activities that strain the hand. Other risk factors for trigger finger were diabetes and rheumatoid arthritis, both of which the worker did not have.
  • the treating physician on August 28, 2011 and September 25, 2011 reported that the worker's bilateral hand condition was a result of repetitive work duties.
  • on September 20, 2011 the treating physiotherapist reported that after reviewing the worker's work duties, he believed that there were many risks for the development of trigger finger.

On November 5, 2011, Review Office directed the file back to primary adjudication to consider the new information provided by the Worker Advisor Office and to conduct a further

investigation into the claim. Subsequently, primary adjudication contacted the worker and his supervisor to obtain further details about his job duties. It also obtained a medical opinion from a WCB medical advisor concerning the development of trigger finger.

In a second decision dated February 1, 2012, primary adjudication advised the worker that a direct causal relationship between the development of his bilateral hand difficulties and the performance of his job duties had not been established. The adjudicator based her decision on the following factors:

  • the cause of trigger finger was unknown;
  • the worker had been in his job for 8 years with no prior symptoms;
  • the increase in job duties was not significant;
  • the worker did not relate his symptoms to work when seeking medical treatment; and
  • his age was considered to be a high risk factor in the development of trigger finger.

On March 5, 2012, the worker advisor wrote the Review Office stating that it continued to be the worker's position that his bilateral hand difficulties were related to his employment and asked that the February 1, 2012 decision by primary adjudication be reconsidered.

On March 30, 2012, a submission was made to Review Office by the employer's representative stating that he agreed with the decision to deny the claim. A copy of his submission was provided to the worker for comment and the worker's written response is on file dated April 6, 2012.

In a decision dated May 9, 2012, Review Office stated that it could not relate the worker's bilateral hand difficulties to his work duties as an incinerator operator. Review Office based its decision on the WCB medical opinion outlined on January 24, 2012 that the development of trigger finger was considered an idiopathic (cause undetermined) condition and that the involvement of multiple fingers on both hands raised the question of the influence of a more generalized or "systemic" contributor. Review Office also considered the worker's job duties and found them to be varied with breaks between tasks. The gripping and grasping of garbage bags was not sustained for a significant period of time and there was a decrease in grasping and lifting involved in the worker's duties. It was unable to find repetitive or forceful grasping in performing the house keeping duties. It considered the onset of the worker's symptoms and found that the onset and resolution of triggering/symptoms of different digits with or without work duties were more indicative of a non-work related cause.

On May 17, 2012, the worker advisor 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 trigger finger condition arose out of and in the course of his employment.

The worker’s position:

The worker was represented by a worker advisor at the hearing. It was submitted that the worker's bilateral hand difficulties arose from his work with the employer. His responsibilities included collecting and disposing of all types of waste/garbage/recycling and biohazard materials. He would pick up and dispose of hundreds of items each shift. He handled the bags by grasping the top and clenching them with his hands. He also had other duties including raking and shoveling ash from the incinerator, sweeping, mopping and vacuuming. His physician and physiotherapist supported that his repetitious work conditions would contribute to his trigger fingers. Literature regarding trigger finger indicated that the condition may occur after activities that strain the hand. Although the worker's job activities were varied, he used his hands continuously throughout his shift. As there was no other known cause for the bilateral hand condition and the work duties required that the worker use his hands continuously, it was submitted that the worker's bilateral hand condition arose from performing his duties. The claim should therefore be accepted.

The employer’s position:

An advocate appeared on behalf of the employer at the hearing. The employer's position was that it agreed with the WCB's decision to deny the claim. It was noted that the worker did not initially relate his symptoms to work duties nor did he report his injury to the employer for several months. There was a long delay in seeking medical attention and the worker did not provide the doctor with a history of work injury at first.

When looking at potential causes for his condition, it was only much later that the worker related his injury to increased work duties. The employer noted that the worker had started a course in another trade in January 2011 and questioned whether there was any physical component to that course that might have contributed to the worker's increased symptoms. It was later conceded, however, that according to the worker's description of the course, it did not involve a physical component which might have caused his condition and the employer had no reason not to take the worker at his word.

Nevertheless, the employer agreed with the WCB's determination that the work duties did not involve repetitive enough gripping to cause the worker's condition and there was not enough evidence to link the condition to his work duties. It was submitted that the worker's hand condition was attributable to an idiopathic/unknown cause and was not compensable.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s bilateral hand condition arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find that the worker’s condition was caused by an accident that arose out of and in the course of his employment. On a balance of probabilities, we are not able to make that finding.

At the hearing, the worker provided specific detail regarding the duties he performed in the course of his employment. He described his duties as follows:


  • Picking up and disposing of all refuse throughout the employer's entire facility. He would push an eight foot steel cart around the facility and pick up hundreds of garbage bags from each floor and department.
  • The steel cart had a horizontal rail which the worker grasped in both hands. The worker characterized his grip as a medium to heavy grip as the cart was heavy (when full it could weigh 700-800 lbs) and he had to steer and control the cart.
  • There were standards in place regarding the method used to pick up and dispose of bags. The rule was one bag at a time per hand and the bags were to be picked up by the top of the bag where the tie or knot was located. The bags were to be held out away from the body and were not to touch the body at any time.
  • The worker would use his left hand to hold the handle of the garbage bin and his right hand to lift.
  • Biohazard materials would be collected in containers ranging from the size of a 355 ml water bottle up to 18 gallon containers. The containers had handles on the side and would be collected by holding a handle in each hand and lifting it up.
  • The garbage would be transported in the steel cart to the garbage trailer where the worker would unload each bag by hand and place it in the trailer.
  • The biohazard materials would be taken to the incinerator room where the steel cart with biohazard bags would be loaded onto a dumpster which would then be mechanically lifted and dumped into the hopper of the incinerator. Biohazard containers would be hand bombed by the worker into the hopper by lifting them with his left hand on the handle and the right hand cupped underneath the bottom.
  • After the incineration was complete, the worker was required to shovel and rake out the ashes.
  • The worker was also responsible for taking a recycling cart loaded with cardboard outside to a recycling trailer where he would hand bomb the cardboard into the trailer.
  • In November 2010, the worker was given additional duties of mopping and sweeping five elevators and vacuuming four landing areas.

At the hearing, the worker was asked to identify the specific duties he felt put strain on his hands sufficient to cause his bilateral trigger finger condition. The worker identified the grasping of garbage bags as being the main factor. He also identified the lifting of biohazard containers and putting them into the incinerator, and pushing the steel cart.

According to the WCB medical advisor's opinion of January 24, 2012, risk factors which may be associated with the development of trigger finger involve repetitive and forceful grasping. The panel has carefully considered the job duties as described by the worker, and while he does use his hands extensively throughout the day, we find we cannot characterize his position as involving repetitive and forceful grasping. We do not view the pushing of the steel cart as requiring a constant forceful grip. The handling of the biohazard containers involves bilateral lifting with the fingers (as opposed to a grasp) and the hand-bombing of the containers into the incinerator does not require any grasping with the right hand. With respect to the main duty of grasping garbage bags, we acknowledge that there is grasping, and that many of the bags would be heavy. The frequency of lifting the bags, however, is broken up throughout the day and the grasping is not sustained for extended periods. The worker's duties are varied and there are numerous breaks in between the grasping activity to allow for rest/recovery cycles. The panel also notes that the worker described the right hand as being the one which did the most lifting, particularly when lifting heavy bags out of garbage bins (the left is used to hold the bin). The worker's trigger finger condition is bilateral, and although it is admittedly worse in the right hand, the minimal grasping activity with the left hand leaves us to question how work would cause the condition to develop on the left side. We find it is more likely that the bilateral condition arose idiopathically, without an identifiable cause.

For the foregoing reasons, the panel finds that the worker's claim is not acceptable. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of November, 2012

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