The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the decision made by the Workers Compensation Board ("WCB") that the worker's bilateral carpal tunnel syndrome was not related to her work duties as a laundry aide. The worker disagreed with the decision and an appeal was filed with the Appeal Commission by the worker's representative. A hearing was held on April 8, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On April 30, 2012 the worker filed a claim with the WCB for injury to her right hand that she related to the following job duties as a laundry aide:

I put face cloths into a bag from the dryer. I do this for eight hours per hand. I just use my right hand, while my left hand holds the plastic bag.

The worker stated that she first noticed symptoms in her hand around January 2012. It started with numbness in her right hand and then her ring finger started to ache. The worker said she reported the injury to her employer on April 26, 2012 after she received the test results back from her doctor.

An Employer's Accident Report dated May 18, 2012 indicated that the worker was bagging face cloths when she felt her right hand go numb and then she had pain shooting up her right arm. The employer noted that the worker filled out forms on April 27, 2012 but did not identify specific dates regarding her injury.

Primary adjudication contacted the worker and the employer to obtain additional information related to the worker's job duties and the onset of her symptoms. The WCB case manager documented that the worker began modified duties in January 2012 due to a left shoulder injury and that her workload decreased at this time. The worker was responsible for placing face cloths into a plastic bag after they were taken from the dryer. She also folded baby linen. The worker attributed her difficulties to the repetitive nature of her work duties.

The employer advised the WCB that they first became aware of the worker's right hand difficulties on April 26, 2012 when the worker attended a meeting wearing a wrist splint. The worker said she felt numbness in her hand for approximately one week.

Nerve conduction studies performed on March 20, 2012 diagnosed the worker with bilateral carpal tunnel syndrome ("CTS"), right more severe than the left.

On May 30, 2012, the worker was advised that her bilateral CTS condition was not work-related as her job duties did not involve highly forceful or repetitive hand motions that were generally associated with CTS and she did not report her difficulties to her employer until April 26, 2012. On July 31, 2012, the decision was appealed to Review Office by the worker's representative.

On October 4, 2012, Review Office confirmed that the worker's claim for compensation was not acceptable. Review Office stated that the light duty position that the worker was performing after her return to work on February 6, 2012 had none of the occupational risk factors associated with CTS and would not be considered more strenuous than any normal acts of daily living. Review Office concluded that a causal connection did not exist between the worker's right wrist CTS and any of her workplace duties. On October 18, 2012, the worker's representative 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 claim acceptance. The key issue to be determined by the panel deals with causation, whether the worker’s CTS arose out of and in the course of her employment.

Worker's Position

The worker was represented by a union representative. The representative outlined the reasons for the worker's appeal. The worker answered questions asked by her representative and the panel.

The worker's representative said the worker's condition was cumulative. He noted that she began working modified duties due to a different workplace injury in February 2012 and within a couple weeks she began feeling numbness and tingling in her right hand and pain in her wrist. He said the injury was due to the change in duties. He said that the position is usually used as a light duty position involving the use of both hands and is performed in 4 hour periods. In this case, the worker had limited use of her left hand as she was not to use her left arm and she performed the duties for the full shift.

The worker's representative reviewed the medical information on file which confirmed the worker had CTS, predominantly in her right hand.

The representative noted that the employer became aware of the worker's injury on March 9, 2012 when the worker attended a meeting wearing a brace on her right wrist. He noted that the next day the worker was assigned to different duties which involved rotations and worked at these duties until September 24, 2012. The worker had CTS surgery on September 25, 2012 and returned to work in late October. The worker confirmed that she has recovered from the injury.

The worker's representative submitted that the worker had a change in job duties, the duties were repetitive and involved constant gripping, the worker developed CTS, and therefore the injury is work-related.

The worker described her regular duties and the modified duties which commenced on February 13, 2012.

Employer's Position

The employer was represented by a representative and a staff member. The employer representative said that it is necessary to look at the research on CTS when adjudicating a claim involving CTS. She referred to prior Appeal Commission decisions outlining risk factors related to CTS.

The employer representative noted the worker worked for 11 years doing similar work. She said that the modified duties did not demonstrate any known occupational factors related to CTS. Although the duties were repetitive, they did not involve other factors. The employer representative submitted that the evidence does not support a finding that the injury is work related.

Analysis

The issue before the panel was whether the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find that the worker's injury arose out of and in the course of her employment or was aggravated or enhanced by her employment. The panel was not able to make any of these findings. The panel finds, on a balance of probabilities, that the worker's injury did not arise out of or in the course of her employment and was not aggravated or enhanced by her employment.

The worker was diagnosed with and treated for CTS. Her condition was diagnosed through a nerve conduction test to be moderately severe. 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 by intrinsic swelling of the median nerve.

In reaching our decision the panel has considered the occupational factors most commonly associated with the development of CTS. These include:

· wrist injury

· frequent use of vibrating hand tools

· any repetitive, forceful motion with the wrist bent (prolonged forced or awkward positioning of the wrist)

· high force and high repetition

The worker's representative advanced the position that the worker's injury was caused by the modified duties that she began on February 13, 2012. He submitted this change of duties is responsible for the worker's injury. The panel notes that the modified duties were arranged because of an injury to the worker's left shoulder which occurred in January 2012. The modified duties involved working in a laundry. She was required to pull small bundles of dry clean face cloths towards her with her right arm, inspect the face cloths individually by picking each up with her right hand and then placing them in a plastic bag which she held open with her left hand. When the bag was nearly full, she would twist the bag and tape it shut. She performed these duties for the full shift. The worker also stated that when she completed each load of face cloths she would fold baby blankets and baby gowns.

The panel carefully reviewed the job duties and asked the worker several questions about the duties, but was not able to identify any occupational factors considered to be causative of CTS in these modified duties. The worker's representative submitted that the job was repetitive. However, as demonstrated by the worker at the hearing, the repetition did not involve high force or awkward positioning of the hand and had no quotas to achieve or maintain. The panel finds that the modified duties were lighter than her regular duties and did not cause the worker's CTS.

The panel finds that the worker's injury is likely a long standing pre-existing asymptomatic condition. The panel relies on the following evidence in arriving at this conclusion:

• the worker performed the modified duties from February 13 to 24, when she saw her physician who noted positive Tinel's signs. The diagnosis provided was CTS. The panel finds that it is highly unlikely that performing relatively neutral duties over such a short period of time could cause moderately severe CTS, as identified in a nerve conduction test.
• the orthopaedic specialist who examined the worker on March 1, 2012 found "slight wasting of the abductor pollicis brevis." A finding of muscle wasting suggests a long term condition and not a condition that would develop within a few weeks.
• the worker's condition has been diagnosed as bilateral, affecting both wrists. Usually bilateral CTS is not caused by employment duties, unless there are job duties that can lead to the development of CTS in each wrist. The evidence does not support this type of work exposure.

Given the finding that the worker's CTS is a pre-existing condition, the panel considered whether the worker's regular or modified duties were sufficient to aggravate or enhance her pre-existing condition. The worker described her regular duties which involved, for the most part, handling clean dry laundry including surgical gowns, towels, wraps, and linens. This included folding the laundry both manually and by the machine. As with the modified duties, the panel could not identify factors which are causative of or capable of aggravating or enhancing CTS in the worker's regular duties.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 22nd day of April, 2013