Public Decisions | The Appeal Commission

Decision #65/14 - Type: Workers Compensation

Preamble

The employer is appealing two decisions made by the Workers Compensation Board ("WCB"). The first decision being appealed is the April 30, 2013 decision that the worker's claim for compensation was acceptable. The second decision being appealed is the January 3, 2013 decision finding that the employer was not entitled to cost relief or cost transfer.

A hearing was held on November 14, 2013 to consider both issues.

Issue

Whether or not the claim is acceptable; and,

Whether or not the employer is entitled to cost relief or transfer of costs.

Decision

That the claim is acceptable; and

That the employer is entitled to transfer of costs.

Background

In July 2012, the worker filed a claim with the WCB for bilateral carpal tunnel syndrome ("CTS") which he related to his job duties as a gas fitter/service technician that involved the following work activities:

I do constant repetitive motion of gas pipes, thread them together with pipe wrenches, lifting, pulling, and turning wrenches. I also operate hand saws for plastic pipe, screw drivers - twisting and turning, hammers, banging, prying, tin snips for cutting sheet metal. I lift air conditioners to mount on brackets and black steel pipes that are 20 feet long. Plastic pipes are 10 feet long, air conditioners, cement pads. I am constantly using both hands.

The worker reported that he had been in his trade for 9 years and had been employed with the accident employer since February 2012. The worker reported that he first noticed symptoms around the end of May or beginning of June 2012. The worker said he was left-handed.

The Employer's Accident Report dated June 13, 2012 indicated that they had concerns over the worker's claim for compensation. The employer noted that the worker had been in their employ since February 15, 2012 and that he had worked a total of 650.5 hours. Around the beginning of March 2012, the worker told his supervisor that his wrists bothered him and that this was an ongoing issue which started before his employment with their company. The worker had several doctor appointments over the past few months and he reported it as a workplace injury on July 12, 2012. About 3 weeks earlier, the worker mentioned that his wrists were in terrible condition and he was in pain. When asked what happened, the worker said he had torn down and re-built a fence during the long weekend in May and that he had replaced the posts and dug all the holes by hand. The worker said his injury became worse after this activity.

A nerve conduction study dated June 22, 2012 confirmed that the worker has bilateral CTS, with the condition being worse on the left.

WCB staff contacted the worker to obtain additional information related to his job duties, the onset of his symptoms and his extra-curricular activities. The worker's previous employers were also contacted for information related to the worker's work history and dates of his employment.

On October 23, 2012, the WCB accepted the worker's claim for compensation as an aggravation of a pre-existing bilateral hand condition.

On October 23, 2012, the WCB advised the employer that it could not apply Cost Allocation related to the worker's bilateral hand difficulties based on WCB Policy 31.05.10 - Cost Relief/Cost Transfers (the Cost Relief Policy). On October 25, 2012, the employer appealed the decision to Review Office.

On January 3, 2013, Review Office determined that the employer was not entitled to cost relief or to a transfer of costs. Review Office considered the worker's claim in accordance with the Cost Relief Policy and found that the criteria set out in the policy had not been met and therefore the employer was not entitled to cost relief or to cost transfer.

Review Office referred to the employer's position that they should not be held responsible for any of the claim costs as the worker had pre-existing issues with his wrists prior to his employment with them and that he severely aggravated his pre-existing injury on personal time rather than during his employment with the company.

Review Office noted the WCB accepted that the worker's bilateral wrist difficulties were employment-related after considering the worker's pre-existing personal health conditions/risk factors and his extra-curricular activities. Review Office noted that all costs of the claim were specific to the bilateral wrist injury and there was no evidence to support that a pre-existing condition had significantly prolonged recovery from the workplace injury or had impacted the duration and/or costs of the claim. On this basis, Review Office concluded that the employer was not eligible for cost relief.

With respect to cost transfer, Review Office noted that section 3(b)(i) of the policy described certain specific circumstances when part of the costs of a claim are transferred from the employer to another employer. In the worker's case, there was no medical evidence to confirm that his bilateral wrist injury/condition was present prior to 2012 and therefore there was no evidence that prior employment was involved in giving rise to the worker's compensable injury. The employer therefore was not entitled to transfer of costs as the criteria for such had not been met in accordance with the policy. On February 27, 2013, the employer appealed Review Office's decision regarding cost relief/cost allocation to the Appeal Commission.

On March 1, 2013, the employer submitted an appeal to Review Office with the position that the worker's claim was not work-related as the worker's bilateral hand condition was present prior to his employment with their company and that his fence building at home was the catalyst to his injury.

On April 30, 2013, Review Office held that the worker's claim for compensation was acceptable. In reaching its decision, Review Office considered the worker's job duties and concluded that they were causal in the development of his CTS.

Review Office did not agree with the employer that the worker's personal activities/actions during the May long weekend precipitated his injury and the claim. Review Office's position was that the worker's personal actions during the May long weekend may have caused a symptomatic increase to the worker's bilateral hand problems but there was no evidence that the mechanics of these personal activities for such a short duration would cause his CTS condition. Review Office also referred to the following comment made by the worker's treating physician on August 20, 2012: "The worker did not have an exact inciting event as the cause of his symptoms…he is a gas fitter and it (sic) constantly gripping tools and pipes, which would certainly explain his symptoms."

On July 3, 2013, the employer appealed Review Office's decision that the worker's claim was acceptable to the Appeal Commission. A hearing was held on November 14, 2013 to consider both appeals submitted by the employer.

On January 13, 2014, it was determined by the appeal panel that there were two other employers with a direct interest in this matter who should have been invited to attend the November 14, 2013 hearing. On January 13, 2014, the Appeal Commission wrote both employers and invited them to participate in the appeal process. As of April 7, 2014, employer A indicated that they were not interested in participating in this appeal and Employer B did not contact the Appeal Commission by January 24, 2014. As such, the appeal panel met on April 7, 2014 to further discuss the appeal and rendered its final decisions on the issues under appeal.

Reasons

Reasons of Commissioners Monnin and Walker:

Issue 1: Whether or not the claim is acceptable.

Acceptability

On the issue of claim acceptability, the panel must address the issue of causation and whether the worker's bilateral CTS arose out of and in the course of his employment.

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 for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment. Therefore, in order to accept the employer's appeal the panel must find, on a balance of probabilities, that the worker did not suffer injury by a workplace accident within the meaning of subsection 4 (1) of the Act. In order to do so, the panel must find that the worker's duties neither: (i) caused his bilateral CTS, or; (ii) aggravated or enhanced a pre-existing CTS condition.

Analysis

Employer's position:

A representative of the employer appeared at the hearing accompanied by the Safety Coordinator. They provided a brief submission and answered questions from the panel. The employer confirmed their position that the worker's doctor had seen him for hand numbness in 2010 and reported to them shortly after starting work for them that his wrists were bothering him as indicated in their accident report.

The representative also stated:

"[worker] had stated on numerous occasions that he had issues before [the employer] with his hands. He had been doing the same job for years, which we believe contributed to the development of his CTS, and therefore, feel that [employer] should be awarded cost relief as originally granted . . ."

On the issue of claim acceptability the employer stated:

"we feel that the cause of the claim arose after [worker] injured himself working on his fence over the May long weekend. He admitted that the symptoms became worse after that time. We feel if he hadn't worked on his fence, no claim would have been made."

The representatives confirmed the worker worked in the residential portion of their business on air conditioning, furnace and water heaters. The worker also did some installing and the representatives confirmed the file evidence that installation was about 50% of his work.

It was the employer's position that from their understanding and the worker's doctor's position that CTS would not develop over the short period of time he had worked for them, some six hundred and fifty hours. They felt very strongly that his prior nine years working in the same position were more contributory to the development of his bilateral CTS.

Worker's position:

The worker did not attend the hearing.

Analysis

The majority of the panel was unable to agree with the employer’s argument that it was the worker’s personal activities and/or actions during the May long weekend that precipitated the injury and this claim. Indeed, it is noted that the employer admitted that it was aware of the worker's discomfort before the May long weekend and that although the worker did not report a workplace injury until after the May long weekend, he had reported problems with his wrists one-to-two weeks into the job.

The majority places weight on the following file evidence in reaching our decision:

The WCB adjudicator spoke to the employer July 24, 2012 who reported that the worker started for them in February 2012 and had the symptoms prior to his start date. He told them shortly after he started he was going to doctor appointments for his hands and he had wrist braces paid for from their Group Benefit Plan.
In the adjudicator's memo dated July 27, 2012 the worker noted he started having difficulties with both wrists at the same time. As well, during this time, the worker had been having nocturnal numbness for years. Although at first the numbness would not awaken him, this changed over time. This nocturnal numbness began during the time frame that the worker was working for employer A and employer B.
In a memo dated August 9, 2012 the adjudicator spoke to the employer who confirmed the worker had symptoms while working for other employers performing similar work, the employer also noted the worker had built a fence in May 2012. In follow-up to the worker on the same date, the worker confirmed that he built a fence on the long weekend but the doctor told him that he would not have developed CTS over such a short period.
The worker also noted the extent of symptoms after the May long weekend 2012 were: waking at night, increased numbness with twisting of wrists or flexing his forearms, occasional pain into his elbow and both hands. The shooting pain was more predominant in the right than the left wrist.
On July 27, 2012 the worker reported a non compensable condition that caused him to be hospitalized. The worker noted that since being off work after his surgery his hands had significantly improved. In addition, he noted that he no longer is awakened at night, his sleeping has improved, he experiences less hand numbness when driving and his wrists only bother him when he bends them a certain way. He indicated that he was going to ask his doctor if he can return to his regular work duties working with an apprentice who can help him.
In a report dated August 16, 2012 the worker's physician noted "worker was having no problems now, hasn't worked for some time, had acute [medical issue] with surgery." Clinical findings showed positive Tinel's sign. For work capabilities the physician noted "work will allow him to try and resume regular duties and scale, report back if symptomatic."
On August 10, 2012 and August 30, 2012 the WCB adjudicator contacted the treating physician's office who noted the worker was seen for dysesthesia September 2011 and hand numbness in September 2010.
On September 6, 2012 the worker noted he worked for employer B from October 2008 to February 17, 2012 doing periodic installation work and had experienced symptoms of nocturnal numbness in both hands. The worker also noted that he worked for employer A from November 2004 to October 2007 doing 50% installing and 50% service work, he could not recall for certain the symptoms while there (or prior to leaving), but would have been nocturnal less severe.
A WCB case manager contacted the worker on September 13, 2012 to confirm return to work dates. The worker had noted he was off from July 23 to August 20 for his unrelated medical condition. His hands improved while he was off work so he was able to return to regular duty, however he was concerned that they will worsen over time and he will need to perform modified duty in the future.

These symptoms were not contributing to a loss of earning capacity when he started work with the employer but would increase in severity depending on the work duties being performed. The majority of the panel finds that the worker had many times recovered from the flare up of symptoms and returned to his regular duties. Further, the majority of the panel finds that following his return to work after August 20, 2012 to regular duties, the carpal tunnel symptoms began to increase again slowly until surgery became necessary on November 13, 2012. Finally, the majority of the panel notes the worker did return to regular duty after August 20, 2012 with minimal symptoms from the event on the May long weekend 2012.

Although the worker's personal actions during the May long weekend may have led to a symptomatic increase to the worker's bilateral CTS there is insufficient evidence that the mechanics of these personal activities in such short duration would cause a condition of CTS.

In sum, on the issue of acceptability based on the balance of the evidence on file, and at the hearing, the majority of the panel finds, on a balance of probabilities, the worker's bilateral CTS is the result of cumulative trauma attributable to his work duties with the current employer, employer A, and employer B.

Therefore this portion of the employer’s appeal is dismissed on this issue.

Issue 2: Whether or not the employer is entitled to cost relief or transfer of costs.

The WCB uses an employer's actual claims costs as a part of the calculation used to establish assessment rates. This "experience-based" approach means that the accident record and cost experience of an employer has an impact on the employer's assessment rate. In the interest of fairness, some claims costs are not directly included in the individual employer's cost experience but instead are shared by a larger group of employers. When a claim cost is transferred from the accident employer to a shared cost pool it is called cost relief. When it is transferred from one employer to another, it is called a cost transfer.

Here, it is the employer's position that all costs should be removed from the claim file and from their firm experience. In that regard, it is the employer’s position that it should not be held responsible for any of the claim costs because the worker had pre-existing issues with his wrists prior to his employment with them. Further, that the work of building a fence severely aggravated his pre-existing injury on personal time rather than during his employment which led him to file a claim with the WCB.

Applicable Policy

During its deliberations, the majority of the panel considered the Cost Relief Policy. The criteria set out in the policy must be met for the employer to succeed in their appeal.

Analysis re Cost Relief

On this particular issue, what the panel must determine from the available evidence is whether the employer is entitled to have any of the costs removed from their firm experience. The Cost Relief Policy describes certain specific circumstances when a claim cost may be transferred from an accident employer to a shared cost pool.

Section 3(a)(i) of the Cost Relief Policy provides that cost relief may be available to eligible employers "Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition." Schedule A to this policy deals with pre-existing conditions and provides that "For claims where a pre-existing condition has affected the disability duration and/or associated costs, the WCB may provide cost relief." The policy states that when the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition, the WCB may provide cost relief. Therefore, in applying the Policy, the majority must determine whether or not the worker has a pre-existing condition and if so determined, what impact it has on this claim.

The majority of the panel finds that the intent of the policy is to address the presence of a condition, either confirmed with a diagnosis or asymptomatic and therefore unknown to the worker, and its impact on a workplace injury at either the same anatomical site or, its effect on the recovery of the worker. To this end, the policy states in schedule 'A' Pre-Existing conditions that:; "The accident employer will not be eligible for cost relief when the pre-existing condition relates to a previous accident with the same employer."

In the case at hand, the majority of the panel accepted the worker's bilateral CTS is due to the work duties performed with the current empllyer, Employer A, and Employer B. Given this, the provisions of the Cost Relief Policy dealing with pre-existing conditions are not applicable.

The majority feels that it is more appropriate for the employer to gain their requested relief in another part of the policy and is of the view that the employer’s appeal with respect to the issue of cost relief ought to be dismissed.

Cost Transfer

Section 3(b)(i) of the Cost Relief Policy describes certain specific circumstances when part of the costs of the claim is transferred from the employer to another employer. This occurs when the claim involves occupational disease or cumulative trauma which is attributable to exposure with more than one employer. The cost transfer/relief criteria and method of cost allocation are described in Schedule E which states that:

Cost transfers will be provided for the accident employer in the following circumstances:

1. When the injury is an occupational disease and the worker worked for more than one employer where it is confirmed the worker was exposed to the occupational hazard associated with the disease.

2. When the injury is a result of cumulative trauma and the worker worked for more than one employer in whose workplace it is confirmed the worker was exposed to the occupational hazard which contributed to the development of the cumulative trauma injury.

Claims costs will be transferred to active employers on the basis of identifiable exposure with each employer, except for hearing loss.

Under Issue 1 the majority of the panel found the worker's bilateral CTS is the result of cumulative trauma attributable to his work duties with the current employer, employer A, and employer B. The majority of the panel therefore finds that the employer is entitled to cost transfer and therefore allows this portion of the employer's appeal on this issue. As per the Cost Relief Policy, claims costs will be transferred to active employers on the basis of identifiable exposure with each employer, to be determined by the WCB.

Panel Members

C. Monnin, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 4th day of June, 2014

Commissioner's Dissent

Commissioner Finkel’s Dissent:

I agree with the majority regarding the legislation that applies to the issue of claim acceptability.

For me to accept the employer's appeal, I would have to find that the worker's bilateral CTS condition did not arise out of and in the course of his employment. After careful consideration of the presentation at the hearing and the evidence on the file, I was able to make this finding, on a balance of probabilities, for the following reasons.

The worker has worked steadily in his occupation since 2004. He had two 4 year stints with two different employers before starting with the current employer in February 2012.
His job duties were similar in all three jobs including the current position, with some variation on the relative mix of his job duties.
Within one month of starting his most recent job, the worker had a conversation with his supervisor indicating that both hands were sore. He was encouraged to file an incident report but declined to do so, indicating that this was a longstanding problem.
The indication of a prior problem is consistent with information provided to the WCB by the worker's attending physician. A WCB adjudicator's note dated August 30, 2012 describes a conversation with the worker's attending physician. The physician noted that the worker had been seen in 2010 complaining of both hands being numb. The worker also commented, on file, that he had night time numbness and had used wrist braces preceding his February 2012 employment with his new employer.
In my view, although the worker had not been formally diagnosed with CTS, the worker was already manifesting symptoms completely consistent with CTS prior to his start of employment in February 2012 with the appellant employer, and was treating that condition, with wrist braces, in a manner commonly used for CTS.
The worker continued to work after the brief mention of symptoms to his supervisor in March 2012. Between March and the May long weekend, there was no mention of any ongoing problems, no time loss, no workplace accommodations or job modifications sought or provided, no medical treatment, and no change in the worker's job duties (such as increased hours or work) or any issues with the worker's job performance.
However, on the Tuesday following the May long weekend, the worker immediately described to his supervisor that he was in terrible pain with both hands. He advised that he had spent the weekend replacing a fence. Later information gathered from the worker suggests that the worker worked three 16 hour days, taking apart a wood fence, digging or redigging fence posts, building the fence, building a dog run, and then adding soil and resodding his entire yard.
The worker eventually saw his attending physician who arranged for diagnostic testing which confirmed that the worker had a bilateral CTS condition.

I have reviewed the job duties that the worker performed in his job, and recognize that they are potentially causative of CTS. There is also enough work done with both hands to potentially support that his bilateral condition is related to his employment.

However, I find that the evidence in this case does not support that specific causal relationship. In this vein, I note that outside of a single conversation between the worker and his supervisor in March 2012, the evidence does not suggest a worsening of the worker's CTS condition in those first months on that new job. He worked without interruption or medical treatment, much as he had done in previous years, performing the same type of job.

Things changed dramatically on the May long weekend. His hands were now in terrible pain which he reported on his first day back, and this continued unabated until he saw his doctor, and was eventually referred to a surgeon who performed the first of two recommended CTS surgeries in November 2012.

In this regard, I have also looked at the worker's activities on the weekend. The evidence discloses that he had worked three 16 hour days, removing a fence, digging or re-digging fence posts using a digger. These tasks involves the use of both hands and considerable forceful gripping and twisting of the wrists. He also moved a substantial amount of soil and sod for the purpose of re-sodding his yard. This task involves extensive shoveling and wheelbarrow work, again involving forceful gripping and extensive use of his hands.

In my view, the worker's personal activities on that weekend were the more proximate source of the worker's changed CTS symptoms than his job duties. To be clear, I do not find that the worker's bilateral CTS condition was caused by the weekend's activities. Rather, I find that the worker had a pre-existing bilateral CTS condition, in the sense that it preceded the start of the worker's employment with the appellant employer. It was then aggravated because of the worker's labour intensive project on a long weekend, and likely enhanced that weekend, given the later need for surgeries to both wrists.

Based on this analysis, I find that the worker's bilateral CTS condition did not arise out of and in the course of his employment, on a balance of probabilities. I would therefore accept the employer's appeal.

Given my findings on the first issue on claim acceptance, no costs should be charged to the employer's account. I would therefore grant the employer's appeal regarding cost relief.

A. Finkel

Appeal Commissioner

Signed at Winnipeg, this 4th day of June, 2014.

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