The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") thather claim for bilateral carpal tunnel syndrome was not acceptable.  Ahearing was held on November 24, 2015 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 19, 2013, the worker filed a claim with the WCB stating that she was diagnosed with severe bilateral carpal tunnel syndrome ("CTS"), which she attributes to her job duties. The Employer's Incident Report indicated that the worker had reported on December 19, 2013 that she had been diagnosed with bilateral CTS.

On December 23, 2013, a WCB adjudicator contacted the worker to discuss her claim. The worker provided detailed information regarding her symptoms and the onset of her symptoms, her work history, the job duties she performed at the time of onset, and the medical attention sought since the onset of symptoms. The worker reported that the onset of symptoms occurred sometime in 2006, and that the same symptoms occurred at the same time in both hands.

In a medical report dated November 13, 2013, the treating specialist stated that the worker "...presents with definitive clinical and electrophysiologic evidence of median neuropathy at the wrist (carpal tunnel syndrome) which is severe bilaterally but electrically slightly worse on the right than the left side. Having gone on for so long and failed bracing, she should proceed to surgical decompression bilaterally."

On February 18, 2014, the worker was advised by the WCB that her claim for compensation was not acceptable based on the following rationale:

In reviewing the file information we find that although your job does require some involvement of the wrists, e.g. gripping, pulling and pushing etc., in our opinion your job does not involve a significant amount of mechanical stress and force and, high constant repetition is not evident as you do a variety of duties throughout the day. Also, the most forceful of your activities, such as scrubbing pots, are done with the dominant right hand. In your case CTS symptoms have onset in the left as prominently as in the right, which does not support that the forceful duties you are performing are having a causal effect.

For the foregoing reasons, we have concluded that, on a balance of probabilities, your bilateral carpal tunnel syndrome is not work related and, thus, does not meet the test required by section 1(1) and 4(1) of the Act.

In a report to the WCB dated March 18, 2014, the worker's family physician stated:

It is…my opinion, that it is very likely that this patient's occupation contributed to the development of CTS. Due [to] the duties of [job title], in the kitchen, and she has to do a lot of cleaning and scrubbing and other repetitive type movements. I feel that this CTS is significantly contributed to her work (sic). If she had an office position, I feel that it would be unlikely that she would have carpal tunnel symptoms to the same degree as she does now.

Most of her duties are very repetitive, in the form of lifting, flexing, etc.

It is difficult to prove if this is caused by her current occupation, but I do feel that her current position contributed to her symptoms.

In a letter dated March 25, 2014, the worker was advised by the WCB that the medical report dated March 18, 2014 did not provide any further information that was not on file and that the decision disallowing her claim still stood.

On March 24, 2015, the Worker Advisor Office provided the WCB with a March 2, 2015 ergonomic review of the worker's department conducted by the MFL Occupational Health Centre ("OHC") and requested a reconsideration of the decisions that the worker's claim was not acceptable.

In a letter dated April 15, 2015, the worker was advised by the WCB that the information submitted by the Worker Advisor Office did not provide any new information to rescind the previous decisions that her CTS diagnosis was not related to her job duties. On May 7, 2015, the worker advisor appealed the decision to Review Office.

On June 19, 2015, the worker's case, which included a submission by the accident employer's representative dated June 2, 2015, was considered by Review Office and the decision to deny the claim was upheld. Based on its review of the worker's job duties, the results of the ergonomic assessment, the worker's symptoms which started as far back as 2006/2007, and the slow progression of symptoms, Review Office was unable to find that the worker's bilateral CTS was causally related to her employment. On June 30, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations, and policies of the WCB's 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 provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Where such an injury has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.10.20.10, Pre-existing Conditions, indicates that a claim can also be accepted if there was a work-related aggravation or enhancement of a pre-existing condition.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from the worker advisor and the panel.

The worker's position was that her bilateral CTS was related to her work duties in a residential facility.

The worker stated that she began her employment in 2005. She was casual for the first 9 months and did not work a lot of hours. She was still casual for the next year or so, but picked up enough shifts to be basically full-time. The worker stated she thought the symptoms in her right hand started in 2006, and the symptoms in her left hand started a few months later.

The worker described her symptoms and how they progressed. She stated that there were 9 different shifts and she worked all of them. Some tasks were repeated in all of the shifts and some were unique to the specific shifts. The worker said that certain tasks in particular involved a lot of movement in both hands, and that she moved constantly from one task where she was using her hands to another. She described how she used each of her hands in performing those duties.

It was submitted that the worker had identified and described many aspects of her work duties that require repetitive and forceful hand/wrist motions, and that these hand activities contributed to the onset and progression of her bilateral wrist/hand condition.

It was further submitted that the OHC ergonomic assessment performed March 2, 2015 showed a number of job activities which were considered to be risk factors for the development of wrist strain, and which supported the worker's position that her bilateral CTS is related to her workplace duties.

Employer's Position

The employer was represented by an advocate. The employer's position was that they essentially deferred to the decisions by the WCB adjudicator and Review Office denying acceptance for this claim. The advocate stated the employer agreed with WCB's assessment of the job duties as not being causative, or typically causative, of CTS. He also noted it was quite unusual for a person to have bilateral CTS from work duties, but added he did not see a lot of reference to a potential non-compensable cause with respect to the worker's particular situation.

The employer's advocate noted they had previously requested that Review Office obtain an additional WCB medical advisor opinion regarding the merits of OHC's ergonomic assessment, but Review Office declined to do so. The advocate submitted that the ergonomic assessment was quite extensive and that in the interests of thoroughness, a WCB medical advisor should have been asked to review that assessment and provide an opinion regarding the findings of the report and how they relate to the particular tasks which had been identified and the likelihood of the development of CTS bilaterally with regard to these tasks.

Analysis

The issue on this appeal is causation of the worker's wrist condition. In order for the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's bilateral CTS arose out of and in the course of her employment. The panel is not able to make that finding.

The evidence establishes that the worker has bilateral CTS. The panel is unable to find, however, that her bilateral CTS is work-related.

The panel notes that some of the most commonly accepted occupational factors associated with CTS include wrist injury, frequent use of vibrating hand tools or any repetitive or forceful motion for prolonged periods of time. Occupationally related CTS is more commonly found where the job duties involve high force and high repetition.

Bilateral CTS can be found to be caused by work if the evidence shows that both hands and wrists were exposed to the types of occupational hazards that could lead to the development of CTS in each hand.

The panel carefully and meticulously reviewed the worker's job duties with her, the changes in her duties, the time spent doing different duties, the equipment used, her posture and positioning while performing her duties, and the use of her hands.

One of the duties which the worker described was stripping dishes, which involved taking plates, cups, glasses and cutlery from trays and placing them in the rinse sink. The worker referred to a heavy plastic dish with a lid which required the use of force, to pop and separate the lid from the bottom of the dish under water, using her right thumb. She would have to scrub coffee cups individually, and using her right hand to scrub and her left hand to hold onto the cup. The worker stated this task would take about 45 minutes for each meal.

Another task which the worker described was lifting the dishes, glasses and cutlery out of the sinks, putting them on racks and pushing the racks down the conveyor to the dish machine. The worker indicated she would pick up several plates at a time, move them to vertical and load them on the racks. When she was finished racking the dishes, she would have to drain the sinks and clean everything.

Another task which the worker described was taking the dishes out of the racks, drying them with a towel and placing them on a cart. The worker said the dishes were heavy, and that these three tasks were particularly hard on her hands.

The worker also explained scrubbing pots. How much time or effort was required would depend on the size of the pot and what it had been used for. An example she used was a large cereal pot where she would put it on the edge of counter and hold it on its side with her left hand while she scrubbed the inside with her right hand. She said that the problem here was the scrubbing with her right hand.

The worker also spoke about scooping food items and putting them on plates. This was done using a scoop with a metal release lever. She would hold the plate with her left hand and use her right hand to scoop the food and release the scoop. How much force would be required to release the scoop would depend on the meal and the number and type of items being served. With dessert, she would also use a pastry bag to add whipped topping. She would use both hands to squeeze the pastry bag, and the amount of effort this took would depend on how thick the topping was on any particular day.

Information on file and information provided at the hearing identify a number of other tasks which the worker performed on various shifts, including passing out plates, serving coffee and tea, loading carts and delivering them, preparing vegetables, setting tables and others.

Asked which tasks in particular she believed contributed to the onset of her bilateral wrist symptoms, the worker said the tasks related to cleaning dishes.

Based on the evidence as a whole, the panel finds that the worker performed a wide variety of job duties. The worker described in detail particular activities or aspects of her job which she stated as having caused or contributed to her bilateral CTS. The panel finds that these activities were not done constantly or over long stretches of time. Those duties were performed for the most part in relatively small periods of time, with breaks and rest cycles between.

The panel also notes, based on the worker's description of the duties and her demonstration at the hearing of how they were done, that the worker's wrists were in a neutral position when she was performing those duties. The panel notes that this is not consistent with the type of positioning which would typically cause CTS.

The panel notes that the worker began experiencing symptoms in 2006, and that the symptoms appeared in both her right and left hands at the same time. In this regard, the panel accepts the initial file evidence as to when the worker's symptoms started, that evidence being closer in time to the onset of the worker's symptoms and consistent with other evidence on file. The panel notes that the onset of the bilateral CTS symptoms in 2006 was close in time to the worker's start of employment on a casual part-time basis. The timing of onset is, again, not consistent with a finding of a work-related cause. The worker's condition is bilateral, developed in both hands at the same time and progressed essentially in lockstep, which typically would require bilateral workplace duties, which are not evident on the file evidence.

The panel further finds that the evidence in this case does not support that the worker's bilateral condition was either caused by, or aggravated or enhanced by, her job duties.

The panel considered the employer's request for a third party review of the OHC ergonomic assessment, and found that this was not necessary.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's bilateral CTS is not related to or caused by her workplace duties. Therefore the claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 22nd day of January, 2016