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 April 11, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On January 26, 2016, the worker filed a claim with the WCB for pain and numbness in both wrists that began at work in February 2011. The worker described her job duties as involving three different functions. The worker reported that she was off work for non-compensable medical reasons between December 2014 and August 2015. She stated that during that period of time: "My hands would go numb sometimes, like when I was putting on make-up or writing, but they did not ache."

The Employer's Accident Report stated that the worker came to their health unit on January 26, 2016 to advise that she had bilateral carpal tunnel syndrome ("CTS") and was prescribed bilateral wrist splints. The worker advised that her wrist issues had been bothering her for about four years. The employer noted that the only report they had regarding wrist issues was from January 11, 2012, when the worker reported that she had soreness on her right wrist. The employer said they had concerns with the claim "due to the timeline of when the employee says she had issues to when she reported to us. Employee claims it was 2011-2012 that these issues surfaced…employee has just resumed her regular job this year, after her non work related absences and modified duties that date back to 2012."

On February 9, 2016, the worker met with a WCB adjudicator to discuss her claim. The worker provided additional information related to her job history, the progression of her symptoms and medical treatment she received.

On February 11, 2016, the WCB requested information from the employer regarding the worker's job rotation since 2011.

By letter dated February 24, 2016, Compensation Services advised the worker that her claim was not acceptable as they were unable to establish a "causal connection" between her bilateral CTS and her employment. The decision stated that:

…we have found no evidence to suggest that your condition has developed from or directly attributable to the nature, conditions or obligations of your employment. While it is true that certain aspects of your work duties involve repetitive movements, it is not evident that these job duties require the combination of high force and repetition - especially in a prolonged manner - that is associated with work-related carpal tunnel syndrome. Also, we cannot relate your condition to the use of vibrating tools at work. Finally, there is no evidence that your condition has developed as a result of a skeletal wrist injury from a work-related incident. [italics in original decision]

On April 26, 2016, a worker advisor requested reconsideration of the February 24, 2016 decision, as it was felt that a full review of the worker's job duties had not been completed by primary adjudication. The worker advisor referred to existing file information as well as additional information provided by the worker to support that the worker's work duties "…have factors that are highly repetitive, forceful, and requires (sic) gripping, twisting, and pulling actions, which does place stressors on the hands/wrists for the development of CTS."

On May 30, 2016, Compensation Services confirmed to the worker that her claim was not acceptable as they were of the view that her condition diagnosed as bilateral CTS was not causally connected to her employment. Compensation Services' decision was based on the following factors:

• The worker did not complain of ongoing difficulties while performing the job duties in the T and D functions nor did she seek medical attention for her condition. Between January 11, 2012 and January 26, 2016, the worker visited the health unit on 79 occasions and never mentioned any hand difficulties.

• Compensation Services was not able to find sufficient evidence to establish that the combined force and repetition that was normally associated with work-related CTS was present in her job duties in T entry function.

• Employer information showed that the worker started the S job after she returned from non-work related medical leave on August 31, 2015. After that date, the worker went to the health unit on eight separate occasions, but the health unit notes did not indicate that the worker made any complaints about bilateral hand difficulties. While the S job does use a knife, Compensation Services could not establish that the job was highly forceful and repetitive enough to cause bilateral CTS.

On July 7, 2016, the worker advisor appealed the above decision to Review Office. The worker advisor submitted that the information/evidence they provided in their earlier submission has sufficient weight to conclude, on a balance of probabilities, that there was a relationship between the employment and the confirmed injury/diagnosis of CTS.

On August 16, 2016, the employer's representative submitted to Review Office that the worker's claim was not acceptable for the following reasons:

• There was a five year delay in reporting an injury to the employer and the WCB.

• The worker attended the health unit 79 times and never mentioned bilateral hand difficulties.

• The worker was absent from work for extended periods but indicated that her hands did not improve.

• The worker's job activities, while busy, did not entail both repetitive and forceful gripping and grasping of the hands.

• When a condition is bilateral, the cause is usually not work-related.

• The worker had non-occupational risk factors for CTS.

On September 9, 2016, Review Office determined that the claim was not acceptable. Review Office stated that it reviewed the job descriptions and arguments from the worker and the employer, and concluded that the overall job duties were somewhat repetitive in nature, but lacked the forces that would equate to a significant risk for development of CTS. There was also no indication on the file that the worker sought medical care in 2011 when she first noticed that her hands were going numb. Since then, the worker had ample opportunity to report bilateral hand problems to her employer but had not done so until she filed her claim.

Review Office also noted that nerve conduction studies on file verified a probable ulnar neuropathy as well as CTS. Given that the risk factor profiles for the development of ulnar neuropathies and fibromyalgia (which had also been diagnosed) were similar to that of CTS, weight had also been afforded to non-compensable causal factors.

On September 23, 2016, the worker advisor 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 Workers Compensation Act (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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured.

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

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 following definitions are set out in the Policy:

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 assisted by a worker advisor, who provided a written submission in advance of the hearing and made a presentation to the panel on the worker's behalf.

The worker's position was that the job duties and functions which the worker performed had all of the movements and occupational risk factors to establish a claim for CTS, and her claim should be allowed.

The advisor submitted that the worker's job duties required the use of both wrists and hands to perform all of her job functions. The worker's CTS condition was confirmed by a nerve conduction test to be worse on the right. This was understandable, given that she is right-hand dominant. There was no doubt that more stress was placed on the worker's right wrist and hand when she was performing her job duties. However, her work duties also involved risk factors which contributed to her left wrist CTS. The worker incident report confirmed that in February 2011 the worker's hands were going numb, more on the right than the left.

The worker advisor referred to a fact sheet on CTS which she had provided in advance of the hearing. She submitted that the fact sheet confirmed the WCB's position that occupational work factors for CTS were repetitive hand motions, awkward hand positions, strong gripping, mechanical stress on the palm and vibration. It also outlined a list of common tasks and occupations associated with the development of CTS, which included the worker's job tasks and occupation.

In response to questions from the worker advisor and the panel, and with reference to photographs provided by the employer in advance of the hearing, the worker described the duties she performed in the course of her employment and the movements that were involved in each of her job functions. The worker also reviewed her job history and described the nature and progression of her symptoms.

The advisor submitted that the information on file, and the worker's evidence at the hearing, confirmed that the worker's job duties had the accepted occupational risk factors of forceful, repetitive hand motions, awkward positioning of the hand and wrist, mainly of the right, mechanical stress at the base of the palm and some vibration. Her work duties also involved movements of the wrist, such as twisting and gripping and pulling. The work involved pinch pressures, gripping, pulling and wrist extension. It was submitted that based on these occupational risk factors, which were confirmed to exist, the worker's claim should be allowed.

It was further submitted that if the panel was not able to find that the work duties caused the worker's bilateral CTS, they were asking that the panel accept the claim on the basis of an aggravation or an enhancement, namely that the work duties contributed to the development of the worker's CTS.

Employer's Position

The employer was represented by an advocate, who provided a written submission in advance of the hearing and made a presentation to the panel. The employer's position was that the worker's bilateral CTS condition was not caused by her work duties and her appeal should be dismissed.

The employer's representative submitted that although the worker claimed that her condition was caused by her job duties from 2011 to 2015, she did not report any bilateral hand difficulties until January 26, 2016. She mentioned a problem with her right wrist once in January 2012 and was given a splint. The next day she reported that she was feeling better and made no further complaints. In the employer's view, this was significant, as the worker made 79 visits to the health unit between January 2012 and January 26, 2016, and did not mention problems with her hands on any of those occasions. She also had medical appointments over the years for a variety of medical conditions, but did not seek medical attention for CTS until January 2016.

The representative noted that the worker was an excellent historian and provided a clear idea of her job duties at the hearing. The evidence clarified that the worker's hand was in a neutral position when she was performing her duties, and the work was not forceful. The work might have been repetitive, but that is not enough for a claim to be accepted by the WCB. In the employer's view, the evidence showed that none of the jobs required a combination of forceful gripping and grasping against resistance with both hands, which are the risk factors that the WCB accepts as being occupational. It was noted that all of the positions which the worker was assigned to were considered to be light duty positions. The worker also rotated through the positions every 2.5 hours or so.

The representative pointed out that the worker was frequently absent from work between 2010 and 2015, including extended periods of time, and that when she was at work, she was usually on light duties. The representative noted that the worker's symptoms did not abate during her absences from work, which further indicated that the worker's bilateral CTS was not caused by her work duties.

In addition, it was submitted that the worker had numerous other health problems over the years and many of the non-occupational risk factors for CTS.

In conclusion, the employer did not feel that the claim was acceptable, and asked that the panel dismiss the worker's appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find that the worker's bilateral carpal tunnel syndrome was causally related to, or aggravated or enhanced by, the performance of her job duties. For the reasons that follow, the panel is unable to make that finding.

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 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 involved high force and high repetition.

Dealing first with the worker's job duties between 2010 and 2014, the worker has submitted that the onset of CTS symptoms started in 2011. The panel notes that the evidence showed that in general, the worker was performing the same duties from 2010 through to the end of 2014. The panel questioned the worker extensively on those duties, her posture and the use of her hands. After considering all of the evidence, the panel finds, on a balance of probabilities, that the worker's duties in that period did not cause the worker's bilateral CTS.

The panel notes that the worker relied in particular on the repetitive nature of her duties over time as being causative of her condition. For the purposes of this analysis, the panel has abbreviated three major job areas as T, D, and S. The panel recognizes that the work was repetitive and relatively fast-paced, but is not satisfied that the duties were sufficiently repetitive or forceful in this instance to be causative of bilateral CTS or of CTS in either hand. The panel notes that the worker would not be doing the same task for the entire day, but would be rotating to a different task at 2.5 hour intervals. The worker said that the T job was the hardest job that she was doing at that time, because she would be keying all the time with her right hand on a touch screen pad. She said that her hand would go numb in that position. The panel noted, and the worker acknowledged at the hearing that her wrist and hand were in a neutral position a lot of the time, including when she was keyboarding in the T job.

The panel is further unable to account for the bilateral nature or worsening of the worker's CTS condition as being attributable to her work duties, particularly given the lack of any real tasks involving the left hand. The evidence showed that the worker did most of her work with her right hand. She said that in some instances, she had no reason to use her left hand, while in others, such as the T job, it was more her arm that she would be moving than her hand.

The evidence also indicates that the worker's symptoms became worse over time and never went away, even during significant periods of time when the worker was away from work. With reference to the six or seven month period of time when she was away from work starting in December 2014, for example, the worker said that before going off work, her wrists "would go numb, like doing everyday things, either doing my makeup or stuff like that, my hands would go numb." The worker went on to say that during the period of time when she was not at work:

They would still go numb at certain times, if you're like on the computer, or if you, say, putting your makeup on, doing that kind of stuff, and holding stuff, peeling potatoes and stuff like that, your hand would get numb.

When asked whether the condition while off work was the same or would get better or worse, the worker said that it was the same.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's bilateral CTS is not causally related to the work she was performing in 2010 through to 2014.

The panel then considered the worker's job duties in 2015 and forward. The worker was away from work until the end of August 2015, at which time she returned to a different position, where she was cutting product with knives (the S position). After considering all of the evidence, the panel finds, on a balance of probabilities, that the worker's duties did not aggravate or enhance the worker's bilateral, or her right or left CTS.

The worker's primary job duties in this period were in the S position. The panel finds that the job duties did not contain the risk factors to aggravate or enhance the worker's right or left CTS. The worker described how she would have to grab a good handful of product and pull it towards her with her left hand, then cut up then down into the product with the knife in her right hand. She would have to sharpen the knife frequently, which she had difficulty doing, as she had not been trained for this. The worker said that this work led to a significant increase in pain in her wrists and hands. She was supposed to rotate with another job, but did not do so because she did not know any of the other jobs. She said that her hands would go numb and would really hurt. She would tell her lead hand and he would take her off the job. The worker described this job as the straw that broke the camel's back.

However, in response to questions from the panel, the worker clarified that when she first started back to work at the beginning of September 2015, she was on a graduated return to work program where she was doing a different duty which involved wiping pans. The panel places particular weight on the evidence that she did not start working in the S position until October, and worked only two hours a day in that position at the beginning, then went back to wiping pans for the balance of the day. She later moved to only four hours per day in the S position.

The panel also notes that in her Worker Incident Report, the worker indicated that she told her lead hand that her hands were sore on December 7, and he moved her to another area where she had worked before, and her hands then got really sore over the next two weeks. This was away from the S position. The report further indicates that the worker had holidays from December 19 to 29, during which time her hands would just ache. Again, the worker's symptoms did not improve, even though she was on holidays and away from work. The panel finds that the worker's exposure to the S job duties was in fact quite limited in time and duration.

The Worker Incident Report also indicates that on her return to work on December 29, the worker told her boss that she could not do "knives" because of her fibromyalgia condition, and not because of her hands. The report also indicates that she was put back in the T and D positions, where her hands would go numb and ache a lot at the wrist. In the panel's view, this confirms that the worker was suffering from ongoing symptoms from her pre-existing (pre-2015) CTS condition and other non-compensable conditions rather than from specific job duties in this period of time.

The panel acknowledges that the worker experienced symptoms in her hands and wrists following her return to work in the fall of 2015. However, the panel is not satisfied that the worker's bilateral CTS, and/or her right or left CTS, were aggravated or enhanced by the worker's job duties and more specifically her work in the S position.

The panel finds, on a balance of probabilities, that the worker's bilateral carpal tunnel syndrome was not causally related to, or aggravated or enhanced by, the performance of her job duties. The claim is therefore not acceptable.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 9th day of June, 2017