Decision #107/17 - Type: Workers Compensation
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 June 1, 2017 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 on July 4, 2014 for injury to both forearms and wrists that she related to the nature of her job duties as a dietary aide and baker. The date of accident was recorded as being January 1, 2013.
The worker reported that her job duties as a dietary aide entailed repetitive motions such as stirring, scooping and serving food as well as lifting heavy pots of food. The worker also reported:
In March 2013 I started a new position in bakery which involved lots of dishing of desserts and squeezing the pastry bag. Once I took over this position my hands started to get worse…My hands were aching prior to me taking this bakery position in March 2013 but got more achy after doing this extra position.
The worker said she reported her symptoms to the lead hand but was unsure of the exact date.
On July 8, 2014, the worker provided the WCB with details regarding her work history and the job duties she performed as a dietary aide and baker along with details regarding her medical history, symptom onset and how/when she reported the accident to her employer and co-workers.
Medical information showed that the worker was diagnosed with bilateral carpal tunnel syndrome ("CTS"), worse on the right, based on nerve conduction studies.
On July 21, 2014, the worker was advised that her claim for compensation was not accepted as the WCB was unable to establish a relationship between the development of her right handed CTS and an accident as defined in the Act. The adjudicator noted that the worker related her symptoms to the piping of desserts and that the aching began a couple of months prior to assuming the task. The adjudicator opined that the nature of the job duties performed by the worker were not highly repetitive and did not require high repetition involving full flexion and extension. The worker also used her hands in different positions and performed a variety of duties throughout her shift.
On July 31, 2014, a union representative submitted to Review Office that the worker's claim for WCB benefits ought to be accepted. The representative noted that the worker was right hand dominant and that her right wrist injury was directly related to her job duties that involved repetitive flexion and extension of her wrists.
In a submission to Review Office dated August 19, 2014, the employer's representative stated the circumstances of the claim did not meet the definition of an accident under the Act or the criteria for an acceptable repetitive strain or CTS claim. On September 9, 2014, the union representative responded to the employer's submission of August 19, 2014.
On September 12, 2014, Review Office confirmed that the claim was not acceptable. Review Office referred to medical reports and test results to support that the worker's bilateral hand numbness was idiopathic and was not tied to her employment. Review Office noted that the worker's bilateral hand issues were progressing in the absence of being at work. Given this and other file information, Review Office was unable to find that the worker's bilateral hand issues are "arising out of, and in the course of, employment."
On October 29, 2015, the worker's union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was requested. On November 9, 2016, the union representative provided the Appeal Commission with a submission to support that the onset and progression of the worker's bilateral CTS was causally related to her work activities. On June 1, 2017, a hearing was held at the Appeal Commission to consider the worker's appeal.
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.
WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") provides that a claim can also be accepted if there is a work-related aggravation or enhancement of a pre-existing condition. 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 represented by her union advocate at the hearing. The advocate indicated that he had provided a written submission prior to the hearing for the panel to consider. In his submission, he noted that the WCB decision cites CTS risk factors that are too restrictive, looking only at "forceful and repetitive hand motions, awkward positions, mechanical stress at the base of the palm, and vibration. It is generally conceded that the greatest frequency of occupationally-related CTS is found where the job duties involve high force and repetition." He proposes criteria from a WebMD article that refer to: forceful or repetitive hand movements; hand-arm vibration; working for long periods in the same or awkward positions, should also be considered.
The written submission detailed the worker's job duties and suggested that while the worker's job as a dietary aide did not involve a combination of force and repetition that one might see in construction or manufacturing, the job duties still involved many similar motions that were done repetitively for prolonged periods of time which probably contributed to the development of her condition.
At the hearing, the advocate noted that the worker first had symptoms in both arms soon after starting as a dietary aide, and that the condition quickly worsened when she took on duties in the bakery in March 2013, and a nerve conduction study (NCS) identified mild right CTS soon after. She was also prescribed braces at that time. She continued to work for 14 months to June 2014, and her symptoms progressed to the point where a repeat NCS in August 2014 showed moderate CTS on the right and mild CTS on the left.
The worker described her job duties with the employer. She started as a dietary aide with the employer in 2007. She originally worked part time, taking care of 40 residents in a particular unit but had a series of duties that she performed away from the unit to prep for resident meals. Tasks included: lifting heavy pots of foods; filling jugs with water and juice powder, mixing, moving and pouring from the juice jugs; loading carts with containers of porridge, loaves of bread, and fruit. Once into the unit, the worker was responsible for making toast including spreading butter and jam, preparing the steam table, and then scooping foods onto plastic plates. The worker indicated that these jobs were primarily right-handed, with the left hand used to hold the plates or bowls in a pinch grip. The worker demonstrated neutral positions for her left wrist. The worker indicated that aides came to the counter, advising which residents they were tending, and the worker would go to a cardex to get the resident's individual order. The worker confirmed that there were time gaps between each order as a result and different tasks for each order, rather than a fast repetitive assembly line process. The whole serving process would take about an hour. After the meal, she received "bins" of empty plates and her tasks involved scraping and rinsing the plates and then loading and unloading the dishwasher. The worker indicated that she would use her right hand until it ached and then switch to her left hand. She started having aching in both hands/arms six months to a year after starting this job, and would be particularly bothered at night. She knew nothing about CTS and thought it was just something that she would deal with, as she would often hear others complain about their hands. Her condition gradually worsened, and she then started to switch, when sore, from her right hand to left hand.
The worker stated that in 2013, she needed extra hours and added the bakery duties in March 2013. A big part of her new job duties was preparing individual servings of desserts. She used an ice cream-type scoop for fruit cocktail and other fruits. She also described preparing the mousse desserts as being difficult; the mousse went into an industrial-sized piping bag which she then used to fill individual bowls. The bag material was rubbery and it required constant twisting to squeeze the mousse out. The left hand was at the top of the bag to squeeze it shut while the right hand would twist the bag and swirl the mousse into bowls. This task would take 1-1.5 hours per shift for 150-175 residents, or 1.5-2 bowls per minute.
The worker then described desserts that came from the freezer. She indicated that they were supposed to be taken out earlier and thawed before she was to cut them, but often weren't. She would take out trays of brownies, Nanaimo bars, as well as frozen pumpkin pies (at least once per week) that had to be cut into tiny pieces and scooped onto plates. She described the tasks as follows:
A. I would try, at first I would try with the knife, and then I would try with a couple other knives, and then I was having to dip them into, like a container full of hot water because it was so frozen that I would have to heat the knife up to try to be able to get the knives through without making a mess, and try to get them into square portions to make them presentable.
Q. We’re talking like a big kitchen knife, like a 12-inch knife?
A. Yes, and I sometimes would just dig through the drawer to find anything I could to try to - - and then eventually I would have to resort to putting it into a container of hot water to try to get through it.
The worker felt that the piping job and the frozen dessert trays contributed equally to her bilateral wrist difficulties.
By April 2013, the worker indicated she was taking sick time off because of her wrists and then went to see a neurologist, who confirmed mild right CTS and prescribed braces, to be worn primarily at night. She did try them at work but they were cumbersome. Her condition continued to worsen until she went off work in June 2014. In July and August, while off work, her condition stayed the same. At that point, she had a second NCS which confirmed that she now had moderate right CTS and mild left CTS. She has since had four surgeries to her wrists -- right, left, left, and right. The worker indicated that her surgeon describes the surgeries as being unsuccessful. She continues to have pain and wears splints.
Employer's Position
The employer was represented by an advocate. His position was that the WCB correctly concluded that the worker's CTS could not have been caused by her work duties with the employer since those duties were not sufficiently repetitive or forceful enough to cause CTS or any other repetitive strain injury. He noted that the worker first reported right extremity issues in early 2013, with a worsening in March 2013 which she attributed to more duties in the bakery area. However, the worker delayed several months in reporting those symptoms to her employer or WCB and did not initially relate her CTS symptoms to her work duties.
The employer agreed with the rationale used in the Review Office decision, which included: the worker not relating the symptoms; the later August 18, 2014 nerve conduction studies showing only mild right CTS symptoms; a finding that the worker's development of bilateral hand numbness was idiopathic and not tied to her employment; and none of the worker's tasks required the use of force with repetitive flexion and extension motions. The advocate defined repetitive as "doing the same tasks, several times a minute throughout the majority of the work day" and indicated that "The worker does a variety of tasks, and though she is using her hands, it is not in the same way occurring several times a minute for the majority of her day."
The advocate noted that the progression of the worker's bilateral symptoms showed that the tasks at work were not what caused her problems.
Analysis
The issue in this appeal is claim acceptability. For the worker's appeal to be acceptable, the panel must find on a balance of probabilities that the worker's right and/or left CTS arose out of and in the course of her employment. The panel was able to make that finding, and more specifically, that the worker had a pre-existing bilateral CTS condition that was aggravated and ultimately enhanced (by virtue of subsequent surgeries) by a change in her job duties in March 2013.
The panel notes that some of the most common occupational factors associated with CTS include a combination of repetitive and forceful motions for prolonged periods of time. Occupationally-related CTS is found where the job duties involve high force and high repetition. Bilateral CTS presents another challenge in that it is often associated with systemic or non-work-related factors, but it can in any event 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.
To decide this appeal, the panel must consider the worker’s job duties to determine whether, on a balance of probabilities, those duties might have caused or contributed to a worsening of her CTS.
In the course of the hearing, the panel carefully reviewed with the worker the nature of her job duties, the time she spent doing each of her different duties, her positioning while performing each of her duties, and the use of her hands.
The worker started as a dietary aide with the employer in 2007. She originally worked part time, taking care of 40 residents with a variety of tasks associated with prepping for resident meals in specific areas of her facility. Tasks included lifting heavy pots of foods, filling and moving and pouring from juice jugs, opening cans and preparations of single servings for deserts. There was rotation among the tasks, and while there was some time pressure in getting the tasks done, the worker did perform the varied tasks at a pace that suited her and which involved rest cycles between the tasks. The panel also notes that the worker first noticed bilateral CTS-like symptoms within 6-12 months of starting her employment. In the panel's view, the early onset of the worker's bilateral CTS symptoms are difficult to relate to her job duties performed by the worker at the outset of her employment. In particular, the panel notes that there was minimal use by the worker of her left hand/wrist in the early stages of her work as a dietary aide, yet the worker developed symptoms of CTS in both wrists at the same time. In the panel's view, the bilateral onset of CTS symptoms is strongly suggestive of a systemic or idiopathic cause rather than from her employment. Therefore, the panel finds that the worker's bilateral CTS was not caused by her employment.
However, the preponderance of evidence discloses that the worker's job duties changed in March 2013, when job duties in the bakery were added, with some significant changes in her tasks. The panel places weight on the worker's evidence of being assigned sheets (2' x 3' in size) of frozen squares, pastries and pies that had to be cut up in order to be served. This task required considerable pressing and prying with knifes and the use of hot water to heat the knives to cut through the frozen desserts. The worker indicated that it would take a long time to complete a frozen sheet, and it would be a rushed job because of the pressure to feed the residents in a timely manner. She sometimes had to get assistance in order to get the task done in time.
The panel finds this particular job duty involved forceful gripping and prying with the right hand and significant pressures and force with the left hand in support, with both wrists being brought into awkward non-neutral positions with high force and with minimal break times. The panel further notes that the preparation of the mousse desserts would also involve some of the occupational risk factors for CTS, in particular the persistent squeezing of the top of the piping bag with the left hand and the twisting and squeezing of the bag with the right hand which would have involved counter pressure with the left. While the panel acknowledges that, overall, there may not be a sufficient volume of duties to cause the worker's right and left CTS conditions, the panel does find that because the worker did have a pre-existing bilateral CTS condition, she was susceptible to an aggravation/enhancement of her underlying CTS condition from her performance of these particular job duties at the volumes that she described at the hearing. The panel notes that the early evidence on file supports this finding. In particular, the worker, in her Worker Incident Report, noted an increase in her symptoms in March 2013, which she attributed in part to her work in the bakery with pastry bags and squeezing out desserts manually.
The panel notes the concerns expressed by the employer's advocate regarding the delay in advising the employer or the WCB as to her symptoms. However, we find that these factors are mitigated because of unique circumstances of this case, in particular, the worker having a gradually worsening pre-existing condition with an altered progression of symptoms caused by a change in job duties. The panel accepts the worker's evidence that she was not aware of CTS and how it was caused.
Based on the foregoing, the panel finds, on a balance of probabilities, that the duties which the worker performed from March 2013 and forward which included a significant amount of time spent using both hands, wrists and forearms caused an aggravation of the worker's pre-existing bilateral 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 her bilateral CTS condition.
The worker's appeal is allowed.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Finkel - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of July, 2017