The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the development of his carpal tunnel syndrome was not related to his work duties and therefore his claim for compensation was not acceptable. A hearing was held on July 15, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On June 25, 2012, the worker filed a claim with the WCB for pain in both wrists that he related to his employment activities as a custodian. The worker reported that his work involved: "mopping, operating a floor machine which involves repetitive gripping and twisting. I also sweep, push the floor machine to shine the floor, move desks, pick up dirt with a picker and emptying big garbage bins. During winter my tasks include pushing the snow blower machine, shoveling and chipping ice."

The worker advised the WCB that he first noticed symptoms in his wrists in April 2010 both at work and at home. His symptoms were mild at first but his hands now went numb. The worker reported that he used sick time to see his doctor for his wrist problems and he was prescribed braces around September 2011. The worker reported that a human resources coordinator, a custodial supervisor and co-workers were aware of his difficulties. The worker had been at his current job for 8 years and was right-hand dominant.

Nerve conduction study results dated December 21, 2011 showed that the worker had mild right and moderate left carpal tunnel syndrome ("CTS"). The worker was booked to undergo carpal tunnel release in October 2012 on his left hand and in January 2013 for his right hand.

On August 29, 2012, a WCB adjudicator contacted the worker with respect to his claim. The worker provided details of his employment history and job duties with the accident employer along with information related to medical treatment he received, the reporting of his wrist difficulties to co-workers and his employer and details of his ongoing wrist symptoms. The worker reported that he owned a chain link fence company which he had operated for 15 years. The worker reported that from May to October he did 1 or 2 jobs a week for 1 or 2 hours on average per day. A hydraulic pounder was used to pound posts into the ground. The chain link was then applied by hand by laying it on the ground and cutting the appropriate amount.

On September 4, 2012, the WCB adjudicator spoke with the accident employer's maintenance manager. The manager confirmed the job duties described by the worker. He said little force was needed for the floor cleaner used by the worker as it was generally self-propelled. The manager stated that roughly two years ago, the worker complained to him about his wrists. He noted that the worker had not missed time from work because of his hands and his job duties had not changed. He said that outside of work, he rode a quad, snowmobiled and had a fencing business.

By letter dated October 3, 2012, the WCB advised the worker that his claim for compensation was not acceptable. The WCB adjudicator advised the worker that an accident had not been established as the duties he performed could not be identified as forceful and repetitive. The adjudicator noted that although the worker's job duties may have required forceful gripping and manipulation of heavy equipment, these duties were performed in shorter duration. The adjudicator noted that the worker operated the floor machine for six hours a day during the summer and that his symptoms started in April 2010. Therefore a relationship between the job duties and the diagnosis could not be established.

On February 13, 2014, a worker advisor acting on the worker's behalf, requested primary adjudication to reconsider its decision of October 3, 2012. The worker advisor indicated that the worker was seeking acceptance of his claim to recover sick time used for his CTS and the associated surgeries, as the worker felt that his need for surgery resulted from his work duties and from a change in equipment.

The worker advisor stated in part that the worker's job duties involved more cleaning and more physical duties when he moved from afternoon shift to the midnight shift. It was felt that the worker's job duties had all the work-related risk factors associated with CTS. Prior to December 2009, the worker performed floor cleaning duties on a ride-on type floor cleaner and he had no difficulties with his hands/wrists. When he changed to night time duties in a different school, the worker used older manual-type equipment. The worker advisor contended that based on a balance of probabilities, the evidence supported that the worker's employment contributed to the development of CTS.

The worker advisor further indicated that the worker used other equipment where he had to swing equipment from side to side. He used the swing machine for about six hours per shift which also required forceful gripping and twisting of the machine. The worker advisor also submitted a January 14, 2013 report from the worker's treating plastic surgeon which stated, in part: "...[the worker] discussed his job duties with me and it is certainly possible that his current job activities could contribute to his carpal tunnel syndrome..."

On February 28, 2014, the WCB advised the worker that the information provided on February 13, 2014 did not provide any new information that would warrant a change to the initial decision to disallow the claim. On March 14, 2014, the worker advisor appealed the decision to Review Office.

On May 7, 2014, Review Office referred to specific file evidence to support its position that the worker's CTS was not caused, aggravated or enhanced by the work duties he performed and that his claim was not acceptable for an accident as provided by subsection 1(1) of The Workers Compensation Act (the "Act"). On May 26, 2014, 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 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 CTS arose out of and in the course of his employment.

Worker’s position

The worker was assisted by a worker advisor at the hearing. It was submitted that the evidence supported on a balance of probabilities that the worker's bilateral CTS arose from his work duties. As of December 2009, there was a change in the worker's employment from an afternoon shift to evenings that involved a change in location and a significant increase in work. The worker first noticed his hands going numb a few months later in April 2010. The symptoms starting in 2010 were reported to the employer and it was aware of the worker's condition. The worker told his supervisor that he thought the symptoms were caused by the floor machine. The worker demonstrated how he would operate the floor machine at the new location. The handles were gripped with each hand in a fist with the wrists cocked fully forward to make the machine move forward, and the wrists cocked back to make the machine stop.

The worker also described other duties which he performed at the new location. The new location was approximately three times larger than the former location and the grounds were much larger. The worker used a different type of equipment to perform his duties, and most notably, he had to use the twist grip floor machine, which was described above. The floor burnisher was also different and more difficult to use, as it was not self-propelled. Other labour intensive duties performed by the worker included moving furniture, mopping, scrubbing/stripping/waxing floors using a swing machine, snowblowing, shovelling and chipping ice. All of the machines, and especially the snowblower, caused vibration in the worker's hands and wrists.

Overall, the worker advisor submitted that the evidence supported that the work duties placed stress on the worker's hands and wrists. The worker relied on a report from the treating plastic surgeon dated January 14, 2013 to establish a relationship between the employment duties and the CTS diagnosis. It was noted that there was no contrary medical opinion to disagree with or counter this opinion.

It was noted that the worker did not have any of the identified non-work-related risk factors. The work duties did have a majority of the accepted work-related risk factors. The worker's type of occupation was one which has been confirmed as a high risk occupation for the development of CTS. The worker's duties required him to use both hands and wrists, therefore it was reasonable to consider his bilateral condition to be related to work. It was therefore submitted that the worker's claim should be accepted.

Employer’s position

The employer was represented by an advocate at the hearing. The employer's position was that the worker's claim for bilateral CTS was not work-related. It was noted that the worker reported a two year history of CTS prior to making a claim for WCB benefits but the medical reports did not record a work-related cause. The employer questioned why, if the worker thought the condition was work-related, he did not immediately make a WCB claim at the outset, instead of using his sick time.

In his worker's report of injury, the worker reported his basic regular duties which he performed in the course of his employment. It was submitted that there was a good variety of tasks and that the worker's personal business installing chain link fencing was far more repetitive and involved more forceful gripping of the wrists and hands than was required in his work as a custodian. The worker's company also offered grass cutting, lawn care and snow clearing services. The worker's pastimes involved riding quads and snowmobiles. The employer submitted that these activities could also be implicated in the development of CTS.

The employer disagreed that janitorial work was high risk for the development of CTS. It was noted that while some aspects of this work may be labour intensive, a worker would not be required to use the wrists and hands in sustained, forceful and repetitive motions. There was a variety of activities with the opportunity to do different duties throughout the shift. The employer also disagreed that the change in locations resulted in a greater volume of work. The floor machine was self propelled and the hands were not held at an awkward position.

Overall, it was submitted that the worker was involved in other activities that were far more likely to result in CTS and that as the work duties did not have the required risk factors, the worker's claim should not be accepted.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that he suffered injury by a workplace accident within the meaning of subsection 4(1) of the Act. In order to do so, we must find that his bilateral CTS arose out of and in the course of his work duties. Based on the evidence before us, we are not able to make that finding.

In deciding the appeal, the panel must carefully examine the worker’s job duties to determine whether they might have caused his bilateral CTS. After considering the evidence as a whole, we are unable to find that the work duties contributed to the CTS, either causally or as an aggravation or enhancement.

At the hearing, the worker described the duties he performed as a custodian at the new location. Although the new venue was larger, the panel notes the employer's evidence that there were also more staff at the new location, and so the overall amount of work done by the worker would have been relatively constant. We do not see a large increase in the workload as a result of the move.

The panel also notes that the first onset of symptoms was reported to be in April 2010. This was only four months after the worker changed locations and would appear to the panel to be a particularly short period of time for a bilateral CTS condition to develop, in the absence of a high volume, high repetition environment.

Typically, when considering a claim for work-related CTS, the panel will look for occupational factors such as a wrist injury, frequent use of vibrating hand tools or any repetitive, forceful motion with the wrist bent, especially when done for prolonged periods without rest. These are the types of activity most commonly accepted to be associated with the development of CTS. It is generally considered that the greatest frequency of occupationally related CTS is found where the job duties involve high force and high repetition.

In the present case, we are not satisfied on a balance of probabilities that such occupational factors are present. There was a reasonable amount of variation in the tasks the worker performed during the course of his shift. He was not constantly doing the same task for prolonged periods of time and there was ample opportunity for rest breaks. There was no production schedule to meet.

The panel has considered the machines which the worker identified as ones which required sustained flexion combined with vibration. The worker's evidence was that to operate the floor machine, he had to keep his wrists in an extreme degree of flexion or extension. On the WCB file, there were two photographs which illustrated proper operation of the floor machine (figures 17 and 19). In the panel's opinion, the illustrations did not support the worker's description of use of the floor machine. The panel does not accept that the degree of wrist flexion or extension demonstrated by the worker at the hearing was required to operate the machine. In our view, a far lesser degree of flexion was required.

The worker relied on the report from his treating plastic surgeon dated January 14, 2013 and it was noted by the worker advisor that there was no contrary medical opinion on file. While this is true, the panel has concerns regarding the plastic surgeon's opinion as it would have been based on the worker's description of how he performed his job duties, and most notably, his use of the floor machine with wrists in extreme flexion. Given the panel's earlier finding that use of the machine would not have involved using the wrists for extended periods of time in extreme flexion with vibration, we place little weight on this opinion.

Overall, the evidence does not satisfy us on a balance of probabilities that the worker's bilateral CTS was related to his work duties. The panel therefore finds that the claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 13th day of November, 2014