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 is not acceptable. A hearing was held on March 5, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB on November 24, 2017 for an injury to both of her hands which she related to her repetitive job duties as a laboratory technologist. The worker reported that she first noticed her injury in April 2017. Her symptoms started with a lot of tingling but had since progressed to the point where she "…can't feel anything on both hands." She said she reported to her employer that she was having issues with her hands getting numb, painful and tingling, and that this would travel up to her left arm and neck. The incident date was recorded as April 1, 2017.

In a Doctor's First Report, the worker's family physician reported that the worker was seen on November 21, 2017, with complaints of ongoing numbness, tingling and weakness, made worse with any repetitive activity. The physician provided the WCB with the results of nerve conduction studies performed November 14, 2017, which showed "severe left more than right CTS [carpal tunnel syndrome]." The physician diagnosed the worker with bilateral severe CTS, and referred her to a plastic surgeon.

On December 5, 2017, Compensation Services advised the worker that her claim was not acceptable. Compensation Services found that although there were repetitive hand movements in her job, the worker was not exposed to highly forceful and repetitive motions of her wrists consistent with the development of CTS, and they were unable to establish a causal relationship between the worker's current diagnosis and an accident occurring at work.

On December 15, 2017, the worker submitted further information, including a detailed description of her daily work duties, and requested that Review Office reconsider Compensation Services' decision. On December 18, 2017, Review Office returned the worker's file to Compensation Services for further investigation and review.

After gathering further information from the worker and the employer, Compensation Services advised the worker, on February 13, 2018, that there was no change to their previous decision. Compensation Services noted that the worker's job duties, as confirmed by the worker and her employer, varied throughout her work day, and there had been no significant increase in her workload or duties resulting in prolonged forceful gripping or grasping.

On March 9, 2018, the worker advised Review Office that she would be submitting additional information to be considered, and Review Office again returned the worker's file to Compensation Services for further investigation and review. On March 15, 2018, the worker submitted further information, including statements from co-workers.

Compensation Services gathered further information from the employer and the worker, and on April 13, 2018, the adjudicator and her supervisor attended at the job site to assess the worker's job duties. On April 19, 2018, Compensation Services advised the worker that the February 13, 2018 decision remained unchanged. In a further letter to the worker dated May 3, 2018, Compensation Services confirmed that based on the information on file and their review of the worker's job duties on site, there was no change to their February 13, 2018 decision. Compensation Services acknowledged that the worker's tasks could be strenuous at times, but found the duties were variable, with changes to hand/wrist mechanics, and that for the most part, her duties did not involve high force.

On May 9, 2018, the worker requested that Review Office reconsider Compensation Services' May 3, 2018 decision. The worker noted she had been working as a laboratory technologist for 31 years and had been diagnosed with CTS. She stated that consideration should be given to the fact that as a female, she was more predisposed to this type of injury. The worker noted that her diagnosis had been confirmed by her family physician, her physiotherapist and her manager at work, and she had provided statements from her co-workers that also confirmed her injury.

On May 24, 2018, Review Office determined that the worker's claim was not acceptable. Review Office placed weight on the worker's advice that she had been employed in her occupation for approximately 31 years, and found that if her job duties were to cause CTS, they would have led to the onset of symptoms earlier in her career.

Review Office further noted that details about the work had been collected from the worker, co-workers and employer, and through a worksite visit by the WCB. Review Office found there was insufficient evidence to show that the worker's duties combined repetitive movements, with force, for prolonged periods of time. Review Office concluded that the work tasks performed by the worker would not involve the occupational hazards, in force or repetition, associated with the development of bilateral CTS.

On July 3, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

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.

"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.

Worker's Position

The worker was self-represented. The worker provided a written submission in advance of the hearing and made a presentation to the panel. The worker's position was that her claim is acceptable as she suffered an injury that arose from her employment.

The worker noted that she has been working as a laboratory technologist for 32 years, the last 12 of which were for the employer. As her career progressed, she started noticing "some things" with her hands. She saw her family physician in the spring of 2017, complaining of pain, tingling and numbness in her hands and going up her arms. She was prescribed splints, but they were not effective. She was then sent for nerve conduction testing, which showed that she had CTS, with her left side worse than her right. Her physician took her off work on November 22, 2017, due to safety concerns, but she went back to work on modified duties after her WCB claim was denied. On February 16, 2018, she underwent left carpal tunnel surgery.

The worker submitted that her physician, her physiotherapist, and her surgeon had all advised that her CTS was due to her job duties. The worker pointed to a March 15, 2018 letter from her physician which stated, in part: "Her symptoms were a direct result of her workplace duties. She does a lot of repetitive activities with her wrists and hands including phlebotomy, twisting clasps, using a microscope and fine manipulation." The worker said that her manager, who came and watched her work, had also stated she had no doubt the worker's injury was due to her job duties. The worker further noted that she had provided letters from four co-workers regarding her job duties and working conditions.

The worker submitted that for two years prior to her February 2018 surgery, the department she worked in was noticeably understaffed. She stated that as a senior laboratory technologist, she does all the training of new employees. The worker said that because they were so short-staffed, she had to do the training and carry her own bench, so she was doing double the workload for probably almost two years.

The worker referred to a medical article which she had provided in advance of the hearing, relating to a study which was done on laboratory techs in general and their job. The worker noted that the article stated that CTS is directly associated with the job duties, and there is a higher predominance in the female population. The worker pointed out that the article stated, in part, that the study "showed that arm/hand exertion, pipetting for long periods, repetitive tasks, shift work…" were associated with CTS among studied laboratory technicians and that "In general, this is in agreement with other studies…that summarized the main occupational risk factors of work-related CTS involving tasks requiring forceful, extensive, repetitive, or prolonged use of the wrists and hands."

The worker called one of her co-workers as a witness. The co-worker, another laboratory technologist, participated in the hearing by teleconference. She advised that she performed basically the same duties as the worker, although the worker also did training. The co-worker responded to questions from the worker and the panel with respect to those duties. At the conclusion of the co-worker's evidence, the worker acknowledged that she was in agreement with the co-worker's description of the job duties.

In conclusion, the worker stated that she believes her CTS was caused by her work, a large part of which is very repetitive. She said she has done the job, and knows what it involves and her injury. She noted that she had to work in very unfortunate staffing situations, and believed that the increased workload had a big effect of the development of her CTS.

Employer's Position

The employer was represented by an advocate and by the employer's Manager, Human Resources. The advocate provided a written submission in advance of the hearing and made an oral submission to the panel.

The employer's position was that they agreed with the decision that the worker's claim was not acceptable. The advocate submitted that the information on file and as presented at the hearing showed that the worker's job duties do not involve the occupational risk factors which are possibly associated with the development of CTS, being a combination of high force and highly repetitive work over a sustained period of time, especially since this is a bilateral condition.

The employer's advocate noted that the worker's tasks as outlined in her job description do not involve force, repetition or awkward wrist positions. She submitted that this was confirmed in the information which the worker and her witness provided at the hearing. It was also validated in the April 13, 2018 site visit, where the WCB adjudicator and supervisor observed the tasks the worker performed and found that they were varied, and that the work was light and did not involve excessive force or continuous awkward wrist positions. The advocate noted that it was unusual that the adjudicator went out and observed the duties, and that the additional information from that site visit was helpful.

The employer's advocate emphasized that the worker's condition is bilateral. She submitted that cases where the condition is bilateral are generally not work-related, and the fact that the worker's condition is bilateral and worse in her non-dominant hand does not support a relationship to her work activities. The advocate stated that the employer agreed with Review Office that one would expect the dominant wrist would be worse, and submitted that the fact the worker's condition was worse in her non-dominant left wrist could not be explained by her work activities.

The advocate referred to medical literature provided in advance of the hearing as showing that the role of repetitive hand/wrist movement and workplace factors in the development of CTS is not proven and remains controversial. It was noted that the article which the worker provided involved a limited study, and the advocate asked that the panel accept the significant medical research showing that the link with occupational activities is questionable and that CTS is not caused by repetitive work alone.

The advocate agreed with Review Office that one would have expected the onset of the worker's condition to have occurred much earlier in the worker's career if it was due to her work duties. The advocate noted that the worker had worked in her position for more than 30 years, and there was no change in her duties to account for the development of her condition in 2017.

In conclusion, it was submitted that the worker's job duties do not contain the risk factors for a claim for CTS to be accepted. The advocate acknowledged that the work was busy and could be demanding, and that the worker was constantly using her hands, but submitted that busy work does not cause CTS, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment. In order to do so, the panel must find that worker's CTS is causally related to her work duties. The panel is unable to make that finding.

The panel questioned the worker and her co-worker at length with respect to their various job duties, the equipment they used, their positioning, and the use of their hands. Having carefully considered all of the information on file and as presented at the hearing, the panel is satisfied that the worker's job duties would not have resulted in the development of CTS in either or both of her wrists.

It is the panel's understanding that occupational risk factors for CTS include forceful and repetitive hand motions, awkward positions and vibration, and that the greatest frequency of occupationally-related CTS is found where job duties involve high force and high repetition. The panel notes that bilateral CTS presents an additional challenge in that it is often associated with systemic or non-work-related causes. Bilateral CTS can nevertheless be found to be caused by work if the evidence shows that both wrists were exposed to the types of occupational hazards that could lead to the development of that condition in each wrist.

The panel accepts that the worker used her hands extensively throughout the day, but is unable to characterize her duties or position as involving repetitive forceful gripping or repetitive awkward positioning of the hand and wrist. While the worker referred to certain duties in particular as having contributed to her symptoms and condition, the panel is unable to find that those duties, or any of her other work duties or the manner in which she performed those duties, would have been causative of her CTS.

The panel notes that the evidence indicates, and the worker confirmed at the hearing, that she would be assigned to different benches or jobs on a daily basis and the schedule would change every week. The panel is satisfied that the duties themselves were varied and did not involve the degree of force or frequency which would result in CTS.

In response to a question as to which task would be the most difficult for her right side, the worker identified slide making and data entry and labelling, in particular, as being the worst ones. With respect to slide making, the worker described how she would have to grasp the slide with her right hand. The panel is not satisfied that the grasping or preparation of slides, as described, was forceful or sufficiently repetitive. The panel notes that once the slide was made, the worker would then shift to labelling it.

The worker indicated that labelling of slides was also hard, as she would have to write specific information in a small space on the slide. Her co-worker also indicated that the hardest part of the job was the manual writing which had to be done perfectly on a slide or the slide would have to be redone. Both the worker and her co-worker indicated that the most challenging part was that they were continually using their hands and repetitively writing. They referred to one particular procedure, where they would have to attend in different parts of the facility, generally in very cramped spaces, and make and label slides. The worker also indicated that she would do most of the data entry manually, with her right hand. The panel notes, however, that the worker's wrist would generally be in a neutral position requiring minimal grip force while writing, and is not satisfied that manually writing on each slide or entering data with the right hand, as described, would be causative of the worker's right-sided CTS.

With respect to the left hand, the worker stated that the hardest task was differentials, which involved constantly entering numbers on a cell counter with her left hand based on what she was seeing through a microscope. The worker described the cell counting as being similar to typing. The evidence indicates that the worker's hand and wrist were in an essentially neutral position throughout this process. The evidence further indicates that there were rest cycles after each differential count, where the worker would take a pen and manually write the numbers from the count using her right hand, then enter the results on the computer. Based on the evidence before us, the panel is unable to find that this task would be causative of the worker's left-sided CTS.

In summary, the panel's general impression of the worker's job duties was that the work was relatively fast-paced and included a number of tasks which involved her hands and wrists, but that overall this was more "busy" work than work involving prolonged or sustained force and repetition that would be causative of CTS in both wrists or either one of them.

The panel further notes that the worker had indicated that there had been no change in her duties over the years. The panel acknowledges the worker's evidence that she was also involved in training new employees, and that this had increased her workload, but is satisfied that the general nature of her duties did not change as a result of her training responsibilities and did not involve the types of risk factors for CTS.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's CTS is not causally related to her work duties. As a result, the panel finds that the worker did not suffer a personal injury by accident arising out of and in the course of her employment, and her claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 3rd day of May, 2019