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 was not acceptable. A hearing was held on November 28, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a claim with the WCB on March 18, 2014 for injury to both hands and her upper back/neck that she related to the nature of her job duties as a pharmacy assistant. The date of accident was recorded as being March 5, 2014.

The worker reported a "repetitive strain injury" to her employer on March 7, 2014.

A March 17, 2014 doctor's report indicated the worker had numbness in both hands and pain in her upper back/neck and noted that it was "work related." The doctor questioned whether it was carpal tunnel syndrome (CTS) and referred the worker to a neurologist.

Medical information from the worker's visit to the neurologist on April 3, 2014, showed that the worker was diagnosed with CTS with "moderately severe impairment of median conduction across both wrists, somewhat worse on the left compared with the right." A referral was made for the worker to have carpal tunnel release surgery on her left hand first.

The worker was advised by the WCB on May 23, 2014 that her claim for her bilateral CTS was acceptable. Her claim for her neck difficulties was not acceptable, as medical evidence provided to the WCB indicated that the worker had degenerative changes involving her cervical spine that occur over time and it could not be determined that it was related to her duties.

The worker had surgery on her left hand on July 15, 2014 but due to ongoing pain issues, had a second surgery on the same hand on May 29, 2015.

On June 27, 2016, a representative for the employer submitted new information to Review Office appealing acceptance of the worker's claim stating, in part, "…we do not believe that her bilateral CTS condition was caused by her work duties in general or exacerbated or caused by her activities on March 5, 2014." Review Office requested that the WCB review the worker's claim file based on the information provided by the employer's representative.

The worker was advised by the WCB on July 25, 2016 that, based on the new information provided by the employer's representative, her claim was not acceptable. The WCB noted that information provided by the employer showed that her duties did not involve a "significant component of repetitive/sustained forceful gripping/grasping." and would not likely contribute to the development of CTS. Additionally, it was noted that one day of repetitive manual duties could lead to transient feelings similar to CTS but would not likely cause CTS or contribute to long term symptoms of CTS.

On February 13, 2017, the worker's representative filed an appeal of the WCB decision to rescind the previously accepted claim with the Review Office.

After considering submissions from both the worker's and employer's representatives, on May 2, 2017, Review Office confirmed that the claim was not acceptable. Review Office found that the job duties identified by the worker were not consistent with the occupational risk factors associated with the development of CTS as the evidence did not indicate high force, high repetition, awkward wrist positioning or vibration. Review Office was unable to find a connection between the worker's job duties and her bilateral CTS.

On May 4, 2017, the worker's representative appealed Review Office's decision to the Appeal Commission. An oral hearing was held on November 28, 2017.

Reasons

Applicable Legislation

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.

As noted in the background the worker's claim was initially accepted by the WCB but later overturned. Therefore the worker is appealing the WCB decision that her claim is not acceptable.

Worker's Position

The worker was represented by a Worker Advisor who made a presentation on her behalf. The worker answered questions from her advocate and the panel. The worker's representative noted that the WCB decision accepting the worker's claim had been rescinded. He submitted that:

Our position, however, remains that the worker’s job duties in general and, in particular, those performed on March 5 through to 7, 2014, contributed to the development and worsening of her moderately severe bilateral carpal tunnel syndrome.

In bringing forward this appeal, we are relying on the extensive file documentation supplied by the worker, describing from her own experience the physical demands associated with her position as a [pharmacy] assistant. 

In addition, we believe the February 2014 physical demands analysis supports our position by way of acknowledging that the pharmacy setting has risks for developing or aggravating a musculoskeletal injury.

The worker's representative submitted that examples of risk factors are noted to include hand manipulation through pinch grip and contact stress, both of which were assessed as being a constant job requirement, performed 67 to 100 percent of the time by an assistant.

The worker's representative noted that according to the employer's ergonomics guide on file:

a musculoskeletal injury is an injury or disorder of the muscles, tendons, ligaments, joints, nerves, blood vessels or related soft tissue including a sprain/strain and inflammation that may be caused or aggravated by work.

The worker's representative submitted that:

In the event this panel determines that the worker’s left and/or right-sided carpal tunnel syndrome is a non-compensable condition predating this claim, we submit claim acceptance is justified on the basis that the worker’s job duties on March 5th through to 7th both aggravated and enhanced her carpal tunnel syndrome.

He said that a worker with moderately severe carpal tunnel syndrome would likely be vulnerable to sustain an aggravation or enhancement performing the duties of the assistant. He submitted that the maneuvers cited by the WCB as being contributory to the development of carpal tunnel syndrome, would likely not be the same level needed to aggravate or enhance the worker's condition.

He noted that the employer's ergonomics guide refers to different stages of musculoskeletal injury, and that late stage musculoskeletal injury may last for months or years. This contrasts with the Review Office position that "aggravation of any kind subsides soon after the causative activity is discontinued."

He submitted that a moderately severe carpal tunnel condition is compatible with late stage musculoskeletal injury. He referred to the WCB's former policy on pre-existing conditions and noted that it provided:

an aggravation refers to the clinical effect of a compensable accident on a pre-existing condition, and an enhancement is when a compensable injury permanently and adversely affects a pre-existing condition or makes surgery necessary.

He stated that:

Bearing the preceding definitions in mind, the worker’s left-sided carpal tunnel syndrome was, by definition, enhanced with the performance of surgery on July 15, 2014. We submit the evidence on file also supports that her right-sided carpal tunnel syndrome was enhanced by being permanently and adversely affected.

The worker's representative asked the panel not to consider and apply the Appeal Commission decision referred to by the employer's representative which dealt with a different worker. He noted that the worker in the other decision performed different job duties and had a different condition.

He stated that the evidence supports that the worker’s job duties played a causative role in her condition.

In answer to questions from her representative, the worker advised that:

• in 2011 she first noticed numbness and tingling during the nighttime in both hands. 

• she would experience these symptoms once every few months. 

• she reported the symptoms to her family physician who thought it was due to sleeping the wrong way. 

• in 2012 the symptoms worsened, waking her up two times per night. 

• she would shake her hands and the symptoms would reside. 

• initially the symptoms were only present during the night. 

• in late 2012 -2013 the symptoms occurred during daytime, she noticed numbness in the hand while driving during the daytime. 

• she underwent physiotherapy treatment and got some relief. • she then began to have tingling and numbness in both hands. 

• she could not remember having problems the week of March 5th.

Regarding her work duties, she explained that on a typical day she would prepare 300 to 400 syringes and on March 5, 2014 she prepared more than 600 syringes. She confirmed that she processed 318 syringes on March 6th, and 290 syringes on March 7th.

The worker brought equipment from her workplace which she used to demonstrate how she performed the duties which she believed were causative of her bilateral carpel tunnel syndrome. She described the equipment used, explained the movements, actions and postures involved in each step, described the substances used and the approximate time for each step and activity involved. She answered questions from the panel while performing the demonstration and demonstrated the postures involved in each activity. She confirmed that she has two 30 minute breaks during a shift.

In reply to a question, the worker confirmed that after work on March 5th, the tingling and numbness in her fingers was much worse and that she could not sleep that evening.

The worker confirmed that she worked mainly as a checker prior to March 5, 2014. She said that the duties involved checking syringes made by other pharmacy assistants. This involved checking syringes for leakage through the caps. To do this she would tap the cap of the syringe a few times to make sure it did not leak through the caps. She also compared volume and clarity of the syringes and checked for leakage through the plunger. She also had to verify expiration of date vials.

The worker advised that in early 2014 she began to drop things. She advised:

I notice I start to drop. And if my hands get numb during, like, when I’m checking syringes, I just basically shake my hand, but I wasn’t aware I do have severe carpal tunnel syndrome.

The worker advised that when she was doing lots of manipulations, lots of syringes to check, she got numbness in both hands.

She advised that while filing the syringes she used her left hand to hold and her right hand to rotate.

The worker was asked which duty bothered her right hand the most. She responded that all the duties bothered her right hand. She said that she could not remember which duty bothered her hand more.

The worker advised that when she arrived at work on March 5, she had no pain in her hands.

In reply to a question about the worker's position, the worker's representative advised that:

Our primary position is that her work duties contributed to the development of the carpal tunnel syndrome.

And if the panel was to find that the carpal tunnel was a non-compensable, pre-existing condition developing over the course of time independent of [worker's] work, then we’re asking the panel to consider that the job duties on March 5th, and 6th and 7th, aggravated and enhanced her carpal tunnel syndrome.

The worker's representative commented that with the nerve conduction study in April showing moderately severe bilateral carpal tunnel syndrome, it is likely that if she had that test on March 7th, the results would have been the same.

He submitted that:

I think it’s appropriate to look at [worker] as an individual, acknowledging that she, in all likelihood, had moderately severe carpal tunnel syndrome, not bothering her when she went into work on March 5th, and then processed 622 syringes, which you heard from her, she had not previously prepared anywhere near that many at a prior period of time.

And by the time she gets home her hands are burning, they’re tingling, they’re numb, and then she’s sent back to essentially do the same job duties on March 6th and 7th. And to me, someone with bilateral moderately severe carpal tunnel syndrome, it would not take as much repetition and force and awkward wrist positioning to make a condition of that nature worse.

The worker noted that she does not have the personal factors that would make her susceptible to carpal tunnel syndrome.

Employer's Position

The employer was represented by an employer advocate and by two staff members, one of whom was a manager in the area where the worker was employed.

The employer's representative submitted that the employer does not agree that the worker's severe bilateral CTS condition was caused by the general nature of her job duties leading up to March 5, 2014, as she primarily worked as a checker, which involves verifying colleagues’ work. She submitted that:

This position does not have the required occupational risk factors implicated in the development of CTS, especially a bilateral condition.

The employer's representative also submitted that the worker's condition was not caused or enhanced by the activities of one day on March 5, 2014.

The employer's representative noted that the worker was hired as a pharmacy technician in September of 2005. In the nine years of service up to 2014, she made no complaints to the employer about having any difficulties with her hands.

She noted that the worker submitted that she had a repetitive strain injury to her hands, upper back and neck, caused by filling syringes on March 5, 2014, and that she had first noticed her symptoms at home.

The employer's representative noted that the worker reported her symptoms to her family physician and a physiotherapist before March 2014 and neither identified the complaints as being work related. The physiotherapist's chart notes for April and May of 2013, indicated that she had numbness in her hands at night.

Regarding the worker's activities on March 5, the employer disagreed with the worker's submission that she has to hold her hands in a certain way for the entire shift and that the work consisted of hand, wrist flexion extension and rotation for prolonged periods of time.

The employer representative advised that it does not dispute the number of syringes filled on March 5, but it does not agree that this activity would cause immediate severe bilateral carpal tunnel syndrome, which was seen on nerve conduction studies taken three weeks later on April 1, 2014.

The employer representative submitted that the worker did not develop carpal tunnel syndrome due to the general nature of her job duties prior to March 5, 2014. She noted that the worker believed that the specific events on March 5 caused her problem.

Regarding the worker's employment record, the employer representative noted that from 2012 on, the majority of the worker's shifts were as a checker, which did not involve the aseptic manipulation. In the period of September 2013 to the date of injury, almost all of her shifts were as a checker.

The employer's representative noted that:

Now, as a checker, [worker] would have been responsible for visually verifying her fellow pharmacy assistant’s work, reviewing written documentation, retrieving items from shelves, verifying volumes calibrated on the compounding equipment, documenting the work, she verified into a log, applying labels on the finished products and delivering the IV products to patient care units.

None of these activities are implicated in the development of carpal tunnel syndrome. This is not forceful work, and the wrists aren’t held in awkward sustained positions.

The employer representative also relied on a WCB medical advisor opinion dated July 25, 2016, in which the medical advisor opined that occupational activities that may contribute to CTS involve a significant component of repetitive, forceful gripping, grasping, sustained awkward wrist postures and/or exposure to vibration or cold temperatures. The medical advisor opined that performance of one day of repetitive manual duties could provoke transient symptoms of carpal tunnel syndrome in the setting of significant pre-existing median neuropathy compression but would not be expected to cause a condition, or contribute to prolonged sustained CTS symptoms if the work duties otherwise were non-contributory.

The worker's manager confirmed the process described by and demonstrated by the worker was reasonably accurate. Regarding the volume of syringes filled, he commented:

Generally there are roughly 300 to 400 syringes are filled, but on Wednesdays, and that was the date, that March 5th was a Wednesday, they do large batches to replenish ward stock, so that is pretty typical.

The employer's representative submitted that:

The evidence does not support there is high force, high repetition, awkward wrist positioning, nor vibration, and that is a fact.

Especially when you look at the fact that she worked as, primarily as a checker from 2012 on, and almost close to 80 percent from September of 2013 to March of 2014. And that work absolutely is not causative in the development of carpal tunnel syndrome.

There really isn’t a basis to say that she developed carpal tunnel syndrome as due to the general nature of her job duties, and there’s no evidence to suggest that that one day of work on March 5th materially changed her condition. 

The nerve conduction study is taken just three weeks later showed moderately severe in both wrists, that’s pretty unusual. You wouldn’t expect to see that degree of carpal tunnel syndrome develop after, just within a three-week period. 

So we would also ask that you accept the WCB doctor’s opinion that said the events, even if she had a pre-existing condition, the events of one day wouldn’t materially change that either, wouldn’t have enhanced her condition, and we agree with that.

Analysis

The issue before the panel is stated as "whether or not the claim is acceptable." Both the worker representative and the employer representative agreed that the issue was not limited to consideration of the March 5, 2014 incident. The parties agreed that the issue was broader and included consideration of whether the worker's general duties, over the prior years, caused her injury and whether the worker suffered an aggravation/enhancement of a pre-existing condition.

For the worker's appeal to succeed, the panel must find that the worker sustained an injury arising out of and in the course of her employment or an aggravation/enhancement of a pre-existing condition. The panel considered all the evidence and determined that the worker's claim is not acceptable.

As a preliminary determination, the panel finds that the worker had CTS symptoms long before the March 5, 2014 accident. This finding is confirmed by the following evidence:

• worker's evidence at the hearing, that she first noticed symptoms of numbness, tingling at night in 2011. 

• worker's evidence at the hearing, that her symptoms worsened in 2012. 

• worker's complaints to physiotherapist in 2013. 

• worker's complaints to family physicians in 2013 and 2014. 

• 2014 NCS which showed severe CTS.

Whether the worker's overall employment caused her CTS

The panel considered whether the worker's employment caused this condition.

The employer representative advised that the worker has been employed as a pharmacy assistant since 2005 and that she did not complain of wrist symptoms until 2014. The employer representative said that the worker was validated as a checker in 2007, employed as a checker from 2012 onward, and worked as a checker for almost 80 percent of her work time from September of 2013 to March of 2014.

The panel notes that in reply to a question the worker said that her duties as a checker did not change in 2011 which is when she first noted symptoms.

The panel considered the duties of a checker as described by the employer representative and the worker.

The panel accepts that these duties include responsibility for visually verifying her fellow pharmacy assistant’s work, reviewing written documentation, retrieving items from shelves, verifying volumes calibrated on the compounding equipment, documenting the work, she verified into a log, applying labels on the finished products and delivering the IV products to patient care units.

In performing these duties, the worker advised that she checks syringes for leakage through the caps, which includes checking to ensure the cap is secure, checking the volume of liquid in the syringe, checking the clarity of the liquid in the syringes which involves shaking the syringe, and checking the plunger.

The panel carefully considered this information and finds that the work activities did not include movements generally associated with CTS such as high force, high repetition, awkward wrist positioning, or vibration.

The panel finds that the worker's general duties since 2005, and specifically her duties as a checker, are not causative of the worker's CTS.

Whether the worker's employment duties on March 5, 6 and 7, 2014 caused or aggravated or enhanced the worker's CTS

The panel has already found that the worker's symptoms and CTS were evident prior to her shifts in March 2014 when the worker's duties involved filling syringes. Accordingly, the panel concludes that the worker's duties' on these dates did not cause her CTS.

The next issue that must be addressed is whether the worker's duties aggravated or enhanced the worker's CTS.

The worker's representative submitted that the worker's duties on March 5, 6 and 7, 2014 aggravated and enhanced the worker's condition. He noted that the worker did not complain of symptoms at work until this date. He noted that on March 5, the worker filled more than 600 syringes which was significantly higher than usual and then filled 318 on March 6 and 290 on March 7.

He referred to the definition of enhancement in the WCB's former policy: an enhancement is when a compensable injury permanently and adversely affects a pre-existing condition or makes surgery necessary, and submitted that:

Bearing the preceding definitions in mind, the worker’s left-sided carpal tunnel syndrome was, by definition, enhanced with the performance of surgery on July 15, 2014. We submit the evidence on file also supports that her right-sided carpal tunnel syndrome was enhanced by being permanently and adversely affected.

The panel notes the worker provided a detailed description and demonstration of the duties she performed on March 5, 2014. The panel finds that the volume of syringes filled on March 5, 2014, 622 syringes, was greater than the usual number that would be filled. The panel accepts that the usual number of syringes filled during a shift is between 300 and 400 syringes.

The panel considered the worker's description of her duties on these dates and finds that they do not include actions which are considered to be causative of CTS or which would aggravate and enhance the worker's CTS. The panel accepts that the worker's duties involved significant use of both hands for the full shift but finds that the particular duties performed did not include activities of high force, high repetition, awkward wrist positioning, or vibration.

The panel notes that the worker's evidence that her hands bothered her while she was driving home after her shift on March 5. The panel found that the worker did not report CTS type symptomatology during the time that the worker was performing her duties on that date.

The panel finds, on a balance of probabilities that the worker's CTS did not arise out of and in the course of her employment and that her duties did not aggravate or enhance her pre-existing CTS. Accordingly, her claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
M. Kernaghan, Commissioner
A. Finkel, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of January, 2018