The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer disagreed with the decision made by the Workers Compensation Board ("WCB") that the worker's claim for compensation was acceptable for an aggravation of carpal tunnel syndrome due to his job duties in March 2012. A hearing was held on January 28, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On April 8, 2012, the worker filed a claim with the WCB for numbness and pain in both hands/wrists which started at work on March 10, 2012. The worker reported that his symptoms worsened as the day progressed and he dropped a fridge and freezer during the last half hour of his shift. When he awoke the next day, he knew he had to seek medical attention as the numbness in his arms and hands had been present all night.

When speaking with a WCB adjudicator on April 30, 2012, the worker indicated that he had been working 12 hour shifts and was losing strength in his hands. He said he underwent nerve conduction studies on April 10, 2012. The worker provided details of his work duties with the accident employer which included moving furniture and drywall, sweeping walls and ceilings, tying garbage bags and moving garbage bags weighing 80 to 100 pounds. He used a dolly to move fridges, freezers and stoves down 2 to 4 sets of stairs. He had been hired by his employer at the end of February 2012.

On May 28, 2012, the accident employer advised the WCB that they did not support the worker's claim. The employer indicated that the worker's main duty was fiberglass insulation demolition and he would remove fiberglass insulation from the project. The worker would tie approximately six bags per hour and the bags weighed approximately 15 to 20 pounds. The worker would occasionally move furniture to help out other workers.

Medical information showed that the worker was diagnosed with bilateral Carpal Tunnel Syndrome ("CTS") on March 11, 2012 and that nerve conduction studies confirmed the diagnosis.

On May 29, 2012, the WCB advised the worker that his claim for compensation was denied as there was no relationship between his work duties on or about March 10, 2012 and the diagnosis of CTS.

The WCB received and considered the worker's daily log sheets from February 23, 2012 to March 10, 2012 as well as information from WCB Alberta. The WCB also considered a submission by the Worker Advisor Office dated April 22, 2013 which argued that the worker sustained an injury as a result of his employment duties in March 2012 and that his claim for compensation should be accepted.

On May 29, 2013, the WCB case manager advised he was unable to accept responsibility for the worker's claim based on his review of the new information. It was noted that the log sheets in general showed that the worker had many days of removing, packaging and discarding insulation bags and there was only one day, March 10, 2013, which showed that he moved and lifted fridges and freezers downstairs. The medical information showed that the worker was diagnosed with CTS on April 10, 2012 and the WCB could not accept that this diagnosis was based upon the worker's term of employment with the employer. On July 16, 2013, the Worker Advisor Office appealed the decision to Review Office.

Prior to considering the worker's appeal, Review Office sought medical advice from the WCB's healthcare branch related to the causes and development of CTS. The medical advisor's response to Review Office is dated September 14, 2013. A copy of the medical opinion was provided to the Worker Advisor Office for comment and their response is on file dated September 18, 2013.

On September 23, 2013, Review Office decided that the worker's claim for compensation was acceptable based on the following rationale:

The Review Office accepts the opinion provided by the WCB medical advisor which indicates the worker likely had some findings associated with CTS prior to the performance of his work duties. This would constitute a pre-existing condition. After considering this and the work duties performed, which involved repetitive grasping/gripping with both hands, the Review Office is of the opinion the worker likely had an aggravation (temporary clinical effect) of a pre-existing CTS condition. We find that this is supported by the decrease in symptoms reported when the worker had stopped working.

On October 2, 2013, the accident employer appealed the WCB decision that the worker's claim was compensable and an oral 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 carpal tunnel syndrome (“CTS”) arose out of and in the course of his employment.

Employer’s Position

The employer's safety coordinator and safety manager appeared on its behalf at the hearing. It was the employer's position that the work being performed by the worker could not have caused the injury he sustained and that the claim should not have been accepted by the WCB. The employer described the project in Northern Alberta for which the worker was hired. It was submitted that it was not possible to go from a healthy body to full bilateral CTS in three weeks of light lifting. On his last day of work, the worker did perform a half hour of moderate lifting with assistance, but again it was submitted that this would not cause the worker's CTS condition to develop.

Worker’s position

The worker did not participate in the appeal.

Analysis

The issue is whether or not the claim is acceptable. In order for the employer’s appeal to succeed, the panel must find on a balance of probabilities that the worker's pre-existing bilateral CTS condition was neither aggravated nor enhanced by his work duties. We are able to make this finding.

The worker’s job duties were reviewed in detail at the hearing. The worker was employed by the employer for approximately two weeks. Evidence from the detailed daily time sheets indicated that a majority of the worker's time was spent filling plastic garbage bags with pink poly batting insulation which was being removed from a fire damaged apartment complex. The batting was dry and the bags weighed approximately twenty pounds each. The worker was responsible for sweeping up the insulation, putting it into plastic garbage bags, tying the bags shut, then carrying the bags approximately 20 feet towards a balcony where the bags could be thrown over the railing into a pile. The bags would rarely, if ever, weigh more than 50 pounds. On the last day of work, the worker and a co-worker were responsible for moving five empty refrigerators down a flight of four stairs using a dolly. The employer advised that the worker was a helper and due to his lack of experience, he was not qualified to perform any of the heavier labour duties involving drywall removal or use of a crow bar or sledge hammer.

After considering the evidence before us, the panel is of the opinion that the worker’s bilateral CTS was not causally worsened by his work duties. The worker was only employed by the employer for 14 days and during that time, the nature of the worker’s job duties were not the type which are typically associated with the aggravation or enhancement of CTS. The work being performed by the worker was relatively light and while the days were long (typically 9 to 12 hour shifts) there was ample time to rest between tasks throughout the day. We find that there simply was not the degree of sustained repetition, force, or awkward movement which would cause a bilateral CTS condition to deteriorate. Although on the last day, the worker was performing the heavier job of moving empty refrigerators down four flights of stairs, this took only about half an hour, and the worker was assisted by a co-worker and they were able to use a dolly. The panel does not view the job as requiring intense gripping or repetitive use of hands such as to significantly aggravate his CTS.

The panel therefore finds that the worker's claim for an aggravation of his bilateral CTS should not be accepted. The employer's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of February, 2014