The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that the worker's claim for bilateral wrist difficulties was compensable. A hearing was held on December 18, 2013 to consider the matter and the hearing reconvened on October 24, 2014.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On December 18, 2012, the worker filed a claim with the WCB for bilateral wrist difficulties that he related to the use of a chain saw and a rat-tail to file and re-sharpen the teeth of a chain saw.

The worker reported that he used a chain saw eight hours per shift. He held the chain saw at different angles and also switched hands. On December 10, 2012, the chain saw was in his left hand and he was cutting a branch while on a bucket truck. This was when he felt a sharp pain in his right hand. He reached down to grab the branch and it tugged on his shoulder. He was always twisting, turning, tugging, pulling and reaching. The vibration from the chain saw aggravated both his arms.

The worker reported that he had been at his current job since August 2012 and that his wrist difficulties began one month later. The worker said he told his supervisor that he was having a problem with sharpening the saw.

Medical information showed that the worker underwent Nerve Conduction Studies on December 17, 2012 and was diagnosed with bilateral carpal tunnel syndrome ("CTS").

On December 20, 2012, the employer advised the WCB that they had concerns with the claim given that the worker had not been in their employ for very long and they were not sure whether his job duties were sufficient enough to cause his wrist problems.

On December 21, 2012, the employer's operation manager advised the WCB that the worker never came forward to state that he had sore hands from sharpening or cutting. He said the worker used a chainsaw for 2 hours a day and there were days where he would not have to cut trees at all. The worker may have pruned a total of 5 to 10 trees since October 11, 2012. The employer noted that the worker had a job as a landscaper and as a tree cutter prior to his current employment. During a casual conversation, the worker told a fellow co-worker that he had CTS for about 3 to 4 weeks prior to starting his current job.

On December 20, 2012 and January 4, 2013, a WCB adjudicator spoke with the worker regarding his work history, job duties and the onset of his bilateral wrist difficulties.

On January 9, 2013, the worker's claim for compensation was accepted as the adjudicator determined that a relationship existed between the development of his bilateral wrist difficulties and an accident arising out of and in the course of his employment.

On January 18, 2012, the worker's employer appealed the decision to accept the claim outlining the view that the worker had CTS before he submitted a claim to the WCB. On March 7, 2013, the employer provided Review Office with a further submission to support that the worker's wrist problems were not related to his current employment.

On April 16, 2013, the worker provided Review Office with his submission regarding the employer's appeal. The worker's submission was then provided to the employer and they provided a response dated May 9, 2013.

On May 14, 2013, Review Office confirmed that the worker's claim for compensation was acceptable. Review Office considered all file information which included the submissions made by the employer and the worker as well as the medical information on file. Review Office found that the worker's job duties as a tree-cutter beginning August 13, 2012 enhanced a pre-existing condition of CTS to the point that surgery was now necessary and that the enhancement of the pre-existing condition satisfied the definition of an accident. Review Office noted it was during this period of employment that the worker returned to see his doctor because of new complaints of pain and "dropping things" and this precipitated a referral for investigative studies, the worker's absence from work and a recent request for surgery.

Review Office found that there was no specific traumatic "event" to have caused bilateral CTS on December 10, 2012. Bilateral CTS was not caused by one action of cutting a branch.

Review Office also found that the worker's non-work related injury of a wrist sprain in November 2012 did not contribute to the development of his CTS or to what occurred at work on December 10, 2012, as suggested by the employer. File evidence showed that the wrist sprain resolved after one week.

On September 13, 2013, the employer appealed Review Office's decision to the Appeal Commission stating: "At the date of injury, [the worker] attended work for...fifty-four out of a possible ninety days. In this time, his work focused on orientation and training. [The employer] is of the opinion that [the worker] did not work long enough to aggravate his pre-existing condition. [The worker] had worked in a similar capacity for at least four years prior to starting his employment with the [employer] and had his own landscaping business."

On December 18, 2013, an oral hearing commenced at the Appeal Commission but was adjourned to allow the interested parties an opportunity to review all the relevant documents and to obtain a copy of the worker's 2012 WCB right shoulder claim arising on the same date.

On May 1, 2014, the Appeal Commission contacted the interested parties to reconvene the December 18, 2013 hearing on September 11, 2014 at 9:00 a.m. Due to unforeseen circumstances, the hearing was rescheduled and took place on October 24, 2014.

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.

The employer’s position:

Three representatives appeared on behalf of the employer at the hearing. The Appeal of Claims Decision form submitted that as at the date of injury, the worker had attended for work for 54 out of a possible 90 days. In this time, the work had focused on orientation and training. The employer's position was that the worker had not worked long enough to aggravate his pre-existing condition.

At the hearing, the employer noted that when the worker had been hired, he had signed a form representing that he was capable of performing the physical duties required by the position. By signing the form, the worker clearly indicated that he did not have a pre-existing condition which would impede his ability to perform the job duties. The employer questioned why the worker would knowingly put himself in a position where he could enhance or aggravate a condition. The medical information demonstrated that the worker had been symptomatic for up to a year or more prior to his employment and it was submitted that this information should have been shared with the employer.

It was noted that in November 2012, the worker reported to the employer that he had injured his wrist while shoveling snow in his back lane at home. This was a month prior to the date of injury. The employer also noted that the worker had been working in the industry for some time before being hired, holding a similar position with a different employer for four years prior and operating his own landscaping and snow removal company for nine years. It was suggested that these factors may have been causative of the worker's bilateral CTS.

With respect to mechanism of injury, it was noted that the worker had also filed a claim regarding a shoulder injury with the same date of accident and the description of the accident differed slightly. The reporting of the cause by the worker was not entirely consistent.

Overall, the employer noted that this was not a straightforward case and it wanted to highlight the different factors involved. The employer disagreed with the acceptance of the claim and the panel was asked to reverse the WCB's decision.

The worker’s position:

A union advocate appeared at the hearing on behalf of the worker. The worker did not attend. The position advanced on behalf of the worker was that the WCB made a correct decision in accepting his claim for bilateral CTS. The worker never denied he had a pre-existing wrist condition; however, this condition was not in any way disabling prior to his employment with the employer. The worker noticed a definite and progressive worsening of his symptoms which commenced approximately four weeks after he began the position. It was submitted that there was a clear connection between the job duties he was performing and the increasing symptoms to his wrists. The worker's numerous job tasks routinely involved flexion and extension of his wrists, as well as ongoing exposure to vibration. Over time, in December 2012, the worker felt his symptoms were worsening with an increase in pain, and he appropriately filed the WCB claim.

Overall, even though the worker had a pre-existing condition, this did not disqualify him from receiving benefits and as the worker's pre-existing condition was enhanced by his job duties, the panel was asked to uphold the WCB decision.

Analysis:

The issue before the panel is whether or not the claim is acceptable. In order for the employer’s appeal to be successful, the panel must find that the job duties performed by the worker did not aggravate or enhance the worker's pre-existing bilateral CTS condition. On a balance of probabilities, we are not able to make that finding.

At the hearing, although the worker did not participate, the employer representatives were able to describe the types of duties which were performed by the worker during his limited tenure with the employer. The work being performed by the worker's crew was to cut down and remove trees. The crew members would rotate from using a hydraulic chainsaw in an aerial bucket, to being on the ground raking/piling, to using a gas powered chainsaw to either remove branches from a felled tree or cut the trunk into manageable sections. The gas powered chainsaw was also used for stumping. Sometimes crew members would be assigned to drive a loaded truck to the disposal site. Additionally, during the course of the day, the chainsaws would become dull and require sharpening. Each crew member was responsible for sharpening their own equipment.

The panel acknowledges the employer's evidence regarding the limited amount of time spent by the worker actually performing duties which involved actions which may be causative of CTS. Nevertheless, we do find that the job duties involved vibratory tools which at times required the worker to maintain his hand, wrist and/or arm in sustained, awkward positions. This was particularly so given the fact that the worker was left hand dominant and some of the equipment was designed for right handed use. Even if the worker only used the chainsaw for a limited amount of time, we find that there was sufficient exposure to negatively impact the worker's wrists, given that he had a pre-existing condition which made him more vulnerable towards injury with less exposure than a worker who did not have a prior condition. The medical reports demonstrate evidence of a worsening condition after the worker commenced employment with the accident employer. By September 28, 2012, the worker had gone to his family physician with complaints of increased symptomatology. The nerve conduction study of December 18, 2012 identified that a moderate CTS condition was present.

On the balance of probabilities, the panel accepts that the job duties the worker performed for the employer contributed to an aggravation of the worker's pre-existing bilateral CTS. As the aggravation was sufficient to make necessary surgery on the pre-existing condition, it constituted an enhancement for which the worker has an acceptable claim. We therefore find that the claim is acceptable. The employer'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 15th day of December, 2014