The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on September 15, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB for an injury to her right wrist which she attributed to her job duties that involved sweeping, mopping, wiping, picking up products throughout the day, lifting and moving things, and buffing with machines. The worker said she first noticed symptoms in the summer of 2015 of a dull ache and her hand falling asleep, which progressed to more pain. She reported her symptoms to the safety officer on December 15, 2015. The worker said she delayed reporting her injury as she did not think her condition was that serious.

The Employer's Accident Report dated January 6, 2016 noted that the worker reported that her right hand kept falling asleep when she was sweeping floors. The worker's doctor referred her to a neurologist who diagnosed her with carpal tunnel syndrome ("CTS") on November 26, 2015. The accident date was listed as August 1, 2015, and it was reported on December 6, 2015.

A WCB adjudicator contacted the worker on January 7, 2016 to obtain additional information with respect to the nature of her job duties and her work history. The worker provided information related to the onset of her symptoms, the reporting of her right wrist difficulties to her employer and her medical status.

Medical information showed that the worker attended her family physician on September 16, 2015 for pain in her right wrist and arm, and was referred to a neurologist for treatment.

On November 26, 2015, the treating neurologist noted that he had seen the worker once on December 10, 2009 for symptoms suggestive of bilateral CTS, worse on the right. Nerve conduction studies of the left median nerve were normal at that time. On the right side, there was only a minimal and negligible abnormality, and conservative treatment was recommended.

The neurologist reported that when he saw the worker on November 26, 2015, she had increasing numbness and tingling involving her right thumb, index and middle fingers, activity enhanced, as well as nocturnal and early morning paresthesia without any weakness. She had a much milder paresthesia on the left side. The results from nerve conduction studies on that date showed the right ulnar nerve and left median nerve were normal. The findings regarding her right median nerve showed moderately severe median neuropathy at the wrist, of the type seen with CTS. Compared to the worker's previous studies in 2009, there had been a significant electrophysiological deterioration.

The neurologist concluded that the worker had a right-sided CTS, confirmed with nerve conduction studies, which should be surgically decompressed.

On February 21, 2016 a WCB medical advisor confirmed that the worker's presentation on the right was consistent with CTS. The medical advisor described the causes of CTS as including exposure to vibration, combination of force/repetition and force/posture, highly repetitive and forceful work.

In a decision dated February 23, 2016, the worker was advised that her claim for compensation was denied, as the WCB was unable to establish a relationship between the development of her right wrist CTS and an accident as defined in The Workers Compensation Act (the "Act"). The WCB's opinion was that the worker's job duties were repetitive, but did not have the necessary combination of force/repetition and vibration to establish a causal connection with the development of CTS.

On April 6, 2016, the worker appealed the adjudicator's decision to Review Office. The worker felt that her job duties were the cause of her CTS as she was always gripping brooms, mops, spray bottles, shovels, etc., which caused extreme pain in her right wrist.

On May 18, 2016, Review Office determined that the claim was not acceptable.

Review Office found the worker's job duties were varied in nature and not particularly repetitive. Review Office noted that the worker had been diagnosed with bilateral CTS dating back to 2009, and that since she had been working with the employer for roughly 5.5 years prior to filing the claim, it was difficult to conclude that her work duties were the cause of her condition. After reviewing all of the file evidence, Review Office was unable to establish that the worker's bilateral CTS was caused by an accident arising out of and in the course of her employment.

On August 9, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

WCB Policy 44.10.20.10 (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented and made a presentation that her right wrist difficulties were caused by her work conditions. She responded to questions from the panel.

The worker described her duties, noting that they involved extremely repetitive and physical work, with a lot of wrist movement, pulling, pushing and lifting. The worker stated that in early August 2015, in addition to her usual duties, she and several others had to move all of the contents from four offices on the main floor into the basement, as the areas were to be renovated. She said it was very rushed and strenuous, as there were a tremendous amount of things in those rooms. After the renovations were done, they had to move the contents of four basement offices into the main floor rooms, clean the basement offices and move the contents from the original four office areas into the basement offices.

The worker said that she first saw the treating neurologist in 2009 because of tingling in her right fingers. The neurologist said that she had a slight CTS, but it was not too bad, so she did not think much about it. In August 2015, she returned to her doctor because her right hand and arm were falling asleep often, and it was becoming increasingly more difficult for her to even wake her arm up. She was again referred to the neurologist, who told her she needed surgery on her right wrist because of her CTS, and the surgery was performed in June 2016.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker's claim is acceptable. In order for the worker's appeal to succeed, the panel must find that the worker's right wrist condition was related to her employment, either causally or as an aggravation or enhancement of a pre-existing medical condition. For the reasons that follow, the panel finds, on a balance of probabilities, that the worker's condition was related to her employment as an enhancement of a pre-existing right-sided CTS condition.

Medical and the worker's evidence indicate she had right-sided carpal tunnel issues back in 2009. The worker stated she was doing a similar job at that time, and was getting tingling in her fingers. The worker said that her condition had not resolved in 2009. Her symptoms would

come back now and again between 2009 and 2014, but she did not feel like her condition was getting any worse at that point. She still had tingling in her fingers, mostly the index finger and thumb, particularly when she overworked her hand.

The panel accepts the worker's evidence that her symptoms had not resolved between 2009 and 2014. The panel is satisfied that there was a consistency in symptoms over the years, and that the worker remained less symptomatic prior to August 2015.

The panel carefully reviewed the worker's job duties with her. The evidence indicated that the worker's condition started deteriorating in August 2015, when she was involved with moving furniture in addition to doing her usual work. She said that everyone was panicking as they wanted to finish the work before the end of the month. She moved lots and lots of boxes that had already been packed with books and other things, garbage cans which had also been packed with things, filing cabinets which were full, and furniture including tables, chairs, lamps and desks.

The worker's evidence was that her condition became worse as the work, in connection with the move and renovations, continued. She said that she knew her condition was getting bad after the first move, because she could feel her wrist weakening and her arm falling asleep. When she was sweeping or using the automatic scrubber on the floor, or even when she was sleeping, her hand would fall asleep, and was getting to the point where no matter what she did with her arm, it would fall asleep.

The panel attaches weight to the findings and opinion of the treating neurologist who examined the worker and conducted nerve conduction studies in 2009 and November 2015. The panel accepts the neurologist's findings that the November 26, 2015 nerve conduction studies showed a significant electrophysiological deterioration when compared with the studies done in 2009, and his opinion that the worker had a right-sided CTS which needed to be decompressed surgically.

Based on the foregoing, the panel finds, on a balance of probabilities, that the duties which the worker performed in August 2015, which included a significant amount of time spent moving heavy items, caused an aggravation of the worker's pre-existing right CTS. As this change in the worker's condition made surgery necessary, the panel finds that the worker's duties caused an enhancement of the worker's pre-existing condition, which is compensable.

The panel therefore finds that the worker has an acceptable claim for enhancement of the worker's right CTS condition.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of November, 2016