The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB")that the worker's claim for right-sided carpal tunnel syndrome is acceptable.  A hearing was held on August 27, 2015 toconsider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On May 14, 2014, the worker filed a claim with the WCB for right wrist difficulties that he related to the nature of his work activities. The date of incident was recorded as November 29, 2013 and was reported to the employer on May 6, 2014. The worker reported that he had been doing the same job with the same employer for 33-34 years. The worker described his work duties in detail, the symptoms he experienced and the medical treatment he received for his right wrist condition. The worker identified a co-worker who was aware of his ongoing difficulties.

The Employer's Accident Report dated May 26, 2014 indicated that the worker's claim should be disallowed as the diagnosis related to the worker's wrist condition was not related to his job duties and there was no work incident.

Medical information on file showed that the worker was diagnosed with moderate right-sided carpal tunnel syndrome ("CTS") and that carpal tunnel release surgery was recommended.

On May 26, 2014, the worker spoke with a WCB adjudicator regarding his right wrist condition. The worker could not recall when the problem with his right wrist started as it was just sore and he kept on working. His wrist condition had worsened over the past winter. He had tingling all the time in his index finger and thumb. He had no prior problems with his right wrist. The worker said he played baseball until about two years ago and did not have any wrist problems. The worker provided details of his smoking history and said he went hunting 2 to 3 times a year.

On June 24, 2014, the co-worker identified by the worker was contacted by the WCB. The co-worker knew the worker's wrist was sore and that the treating physician told the worker to wear a wrist brace at work. He said it was obvious that the worker was having right wrist pain when using hand brakes.

By letter dated June 24, 2014, the employer was advised that the worker's claim for compensation was accepted as a WCB responsibility. After reviewing the Job Demands Analysis and confirmation from a co-worker that the worker was having ongoing issues with his wrist, the adjudicator determined that a relationship had been established between the worker's employment activities and his diagnosed wrist condition.

In a written submission addressed to Review Office dated December 11, 2014, the employer stated:

"...[The worker's] CTS did not arise out of and occur in the course of employment. Occupational hazards that can cause CTS are high frequency of repetition with force and/or vibration. [The worker's] job duties do not require prolonged or repetitive flexing. The job duties are varied and are not prolonged or repetitive enough or at a high enough frequency to cause CTS. [The worker] also does not work for long periods in the same or awkward position and vibration is on a rare basis. [The worker's] job as a ... is not a job that would cause CTS based on the nature of the duties - it is not repetitive and forceful."

On February 5, 2015, Review Office determined that the worker's claim for compensation was acceptable. In making its decision, Review Office referred to the job duties described by the worker to the WCB on May 26, 2014 and the information provided by the co-worker on June 24, 2014. Review Office concluded that the worker's job demands required him to occasionally use torque wrenches to tighten nuts and pushing air compressors. The worker continuously performed "grasping" hand activities using hand tools and machine parts and was rarely exposed to vibrating tools.

Review Office's opinion was that the worker's right wrist CTS was causally connected to his job duties as they were consistent with the type of duties associated with the development of CTS such as grasping and repetitive forceful wrist motion. On February 17, 2015, the employer 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 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.

The employer is appealing the WCB decision to accept the worker's claim. The key issue to be determined by the panel deals with causation and whether, on a balance of probabilities, the worker’s right wrist condition arose out of and in the course of his employment.

Employer's Position

The employer was represented by its WCB Specialist who participated in the hearing by conference call. The employer representative advised that the employer disagrees with the WCB Review Office decision that the worker's right CTS is related to his employment. She said the evidence does not support a work relationship.

The employer representative reviewed the duties of a diesel mechanic noting that the duties are varied and change frequently.

She noted that the Job Demand Analysis for Diesel Mechanics, did not identify significant risk factors. The analysis indicates that duties involve:

• working in awkward positions occasionally (up to 33% of a shift)
• pushing/pulling occasionally ( up to 33% of a shift)
• vibration from tools rarely (up to 5% of a shift)

She noted that the duties do not involve tasks requiring forceful repetitive wrist movement, high gripping forces over a long period of time and/or frequent use of vibrating tools and that the tasks are broken up. She also noted that the worker could not identify a specific incident or identify when he first noted the symptoms.

When advised that the worker does not perform the work of a diesel mechanic but is employed as a Diesel Service Attendant, the employer representative noted that the Jobs Demand Analysis on the WCB file includes the duties of Diesel Service Attendant and that the analysis does not support a finding that the duties are repetitive and forceful enough to cause CTS.

The employer representative confirmed that she had no problem with the accuracy of the job duties as described by the worker and his union representative at the hearing. She said that while the worker does use his hands a lot during his shift, he gets breaks in between tasks, the duties are not continuous and are not repetitive like an assembly line.

The employer noted there are many non-work, personal risk factors for CTS but, when asked, did not identify any personal risk factors in the worker's case.

Worker's Position

The worker was assisted by a union representative who performs the same job duties with the employer as the worker.

The union representative noted that the worker does not work as a Diesel Mechanic but is a Diesel Service Attendant. He provided a copy of the duties of a diesel service attendant as set out in an appendix to their collective agreement. The duties of a diesel service attendant include: moving, marshalling and building locomotive consists within shop areas and delivering locomotives to departure areas; fueling, re-supplying, and cleaning locomotives; testing, cleaning and recharging locomotive toilets; adjusting, testing and making minor repairs; inspecting and topping up all fluids and pre-departure safety inspections.

The worker and union representative identified the duties which they believe were causative of the worker's CTS. These include:

• ladder climbing - the worker is required to climb up and down ladders frequently with tools and supplies. The ladders have curved bar handles and at the top require significant force to pull up. The worker said he usually held on to the handle and pulled with his right hand, with items held in his left hand.
• handbrakes - the worker must operate the handbrakes on the locomotives when working on them and when assembling a consist. This involves significant force and is performed frequently throughout the shift. It involves the rotation of a wheel, with the last half of rotation being very difficult in tightening the brake and the first half rotation being very difficult in loosening the brake.
• switches - to move the locomotives around the shop/yard, the worker must frequently operate switches which require significant force.
• fuelling - requires twisting and pulling when moving, positioning and attaching hose to the locomotive.
• throttle - moving the locomotive involves operation of the throttle, which has resistance and requires force.
• writing and filling in forms - causes the worker's wrist to ache.
• use of screw drivers, wrenches, and sockets in adjusting/fixing/replacing parts as it involves awkward positions.
• gates - moving safety gates on platform when working on locomotives - gates are heavy and must be moved frequently.
• MU cables - awkward positioning/twisting/rotational force when connecting/disconnecting these thick cables which are heavy and difficult to move, especially when frozen.

In answer to a question, the worker advised that his left wrist is good and that he still has some pain in his right wrist, post-surgery. He is back doing his regular duties.

Analysis

The issue before the panel is claim acceptability and whether the worker’s right wrist CTS arose out of and in the course of his employment. In order for the employer's appeal to be successful, the panel must find that the worker’s injury was not caused by an accident that arose out of and in the course of his employment or in other words, that the worker's job duties did not cause the worker's right wrist CTS. The panel was not able to make this finding.

CTS is defined as the impairment of the motor and/or sensory function of the median nerve as it traverses through the carpal tunnel. CTS is caused by either intrinsic swelling of the median nerve, or by extrinsic compression of the median nerve by one of the many surrounding structures of the wrist.

CTS has a number of causes. Some of the most commonly accepted occupational factors associated with CTS include: wrist injury, frequent use of vibrating hand tools, and any repetitive or forceful motion with the wrist bent, particularly when done for prolonged periods without rest. Generally, CTS is more commonly found where the job duties involve high force and high repetition.

Having considered all the evidence, the panel finds, on a balance of probabilities, that the worker's job duties as a diesel service attendant are the cause of his right wrist CTS. The panel questioned the worker and his representative extensively on his duties, equipment used, his posture and the use of his hands. Upon considering all the evidence, the panel finds, on a balance of probabilities, that the worker's duties caused the worker's right CTS.

The panel finds that the worker's duties required the frequent use of his hands often in awkward positions, prolonged, and with significant force. He is right hand dominant and explained that he uses his right hand more. We note in particular that although there were breaks between various job tasks, a number of the job duties involved high force activities of grasping, flexion and extension, and were performed frequently, if not continuously though the day. We find that the following tasks meet the causative factors associated with the development of CTS and were performed with sufficient frequency to have contributed to the development of the worker's right CTS: ladder climbing, operation of hand brakes, operation of switches, fueling locomotives, and connecting and disconnecting the MU cables.

The worker's claim is acceptable. The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 1st day of September, 2015