Decision #07/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim was not acceptable. A hearing was held on October 29, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on December 6, 2016 reporting an injury to her left and right wrists that occurred at work, with an incident date of July 1, 2015. In her Report, the worker noted that in July 2015, her job duties included "…stripping floors and I had to use a bussing [sic] machine that vibrates. After holding the machine for a long time, my fingers felt numb and a sharp pain in both of my hands." The worker advised that in September 2015, she was mopping and sweeping and the pain settled but did not go away. She noted that she wore braces on her wrists at night when sleeping. She further advised that in May 2016 she was referred for a nerve conduction test which indicated she had carpal tunnel. The worker advised that in July 2016, she was provided with a new machine for stripping the floors. The worker further indicated she had undergone another nerve conduction study and her doctor advised she required surgery.
On December 8, 2016, the WCB received a copy of a June 1, 2016 nerve conduction study and report for the worker. The nerve conduction study demonstrated "Moderate right median neuropathy of the wrist" and "…mild left median neuropathy of the wrist." A second nerve conduction study undertaken on December 5, 2016 demonstrated "Severe right, moderate left CTS [carpal tunnel syndrome]."
The worker discussed her claim with her WCB adjudicator on January 11, 2017. The worker confirmed that she had previous carpal tunnel release surgery to her left wrist in 1999 and her right wrist in 2000. She related her carpal tunnel symptoms to driving and her job duties involving the use of machines to strip, buff and clean the floors. She noted that the machine vibrates when in use and the "…handle is at her waist and her hands are pushing down with her wrists positioned at an angle, and she has to push up and down on the handle to go side to side." The worker further noted that this machine is used to strip wax from the floors during holiday breaks, three times a year, and during that time, the machine is used up to three or four hours some days. She reported that in March 2015, a part was replaced on the machine she used, and near the end of July 2015 she started to feel an increase in her symptoms as the replacement part did not fit properly and the machine began to vibrate more and was harder to control. She advised that the machine was replaced in the summer of 2016.
On January 17 and 18, 2017, the WCB spoke with two of the worker's supervisors regarding her claim. The first supervisor confirmed that the worker complained of her wrists hurting when using the floor buffer/swing machine. The second supervisor confirmed the worker's description of her duties and that the machine was replaced in the summer of 2016. The WCB spoke with another co-worker on January 19, 2017 who confirmed that the worker had made complaints regarding her wrist difficulties to him.
On February 24, 2017, the worker's file was reviewed by a WCB medical advisor. The WCB medical advisor opined that the worker's previous carpal tunnel release surgery "…should make one less likely to develop CTS in future." The medical advisor further noted that the same factors that contributed to the initial development of CTS would contribute to the subsequent recurrence, including repetitive and forceful gripping/grasping, sustained awkward wrist postures, exposure to cold and vibration.
On March 31, 2017, the WCB's Compensation Services advised the worker that they were unable to accept her claim. Compensation Services noted that while some repetition and force was required in the worker's job duties, the nature of her work did not require "…high repetition or force involving full flexion and extension." Further, it was noted that the worker performed a variety of job duties and used her hands differently in tasks throughout the course of her shift. Compensation Services advised that bilateral CTS is not a common work-related condition as most people use one hand or arm more than the other, or perform different tasks with each arm throughout the day, and as such, bilateral CTS strongly suggests a non-work-related cause.
On June 8, 2017, the worker requested that Review Office reconsider Compensation Services' decision. In her submission, the worker provided a detailed breakdown of her daily job duties and noted that during the times when she used the machine that strips the floor, extensive hand and wrist movements were required which were very hard on her hands and wrists, and led to the development of her CTS.
On August 2, 2017, Review Office determined that the worker's claim was not acceptable. Review Office found that the worker had had CTS in the past, and had non-work-related risk factors for the development of CTS. Review Office noted that the worker was also diagnosed with osteoarthritis in her carpometacarpal joints bilaterally, which likely accounted for the pain she reported in the base of her thumbs and was determined not to be work-related. Review Office stated that they were unable to conclude that the worker's difficulties were work-related, given the length of time she had been performing her job without reported difficulties and the variety in her job duties.
On January 18, 2019, the worker's union representative submitted a March 27, 2018 report from a physician with an interest in occupational medicine in support of the worker's claim and requested that Review Office reconsider their August 2, 2017 decision. The physician with an interest in occupational medicine opined in his March 27, 2018 report that CTS "…is related to a number of work related and non-work related factors" which include forceful, repetitive motions of the wrist and vibration. Non-work-related factors were also noted. The physician opined that the worker performed job duties which included repetitive and forceful tasks and referenced medical studies relating the worker's job to occupational risk factors for the development of CTS.
On February 27, 2019, Review Office determined that the worker's claim was not acceptable. Review Office indicated that the medical studies referred to by the physician with an interest in occupational medicine did not constitute sufficient scientific evidence to support that the worker's occupation exposed her to the development of CTS as an occupational disease. Review Office further re-affirmed their previous conclusion that while some of the worker's job duties were repetitive and forceful, her duties were varied and the use of vibratory tools or machines was not constant or typically performed for prolonged periods of time. Review Office further found that most of the worker's job duties did not require forceful or repetitive gripping or pressure on her wrists.
On March 5, 2019, the worker's union representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On December 10, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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 compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.
What constitutes an accident is defined in subsection 1(1) of the Act, which provides 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,
(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.
Occupational disease is further defined in subsection 1(1) of the Act (as it read at the time of the date of incident) as follows:
"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation;
(b) peculiar to the particular employment;
but does not include
(c) an ordinary disease of life; and
(d) stress, other than an acute reaction to a traumatic event.
WCB Policy 44.05, Arising Out of and in the Course of Employment, states, in part:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker also made an oral presentation at the hearing and responded to questions from her representative and from the panel.
The worker's position was that the evidence supports she was injured as a result of her work duties and her claim is acceptable.
The worker's union representative submitted that the worker's carpal tunnel syndrome was a direct result of her employment as a custodian, as the majority of her duties involved forceful gripping, vibration and repetitive wrist movements. In addition, the worker's job duties intensified at particular times of the year, notably at spring, summer and December holiday breaks, when she spent the majority of her shift using larger machines to strip, wax, and buff the floors. The representative submitted that the performance of these intensified duties resulted in increased repetitive wrist movements, forceful gripping of machines for longer periods of time, and longer periods of exposure to machines that vibrated.
The worker's representative further submitted that the March 27, 2019 letter from the physician with an interest in occupational medicine, on file, confirmed the diagnosis of bilateral CTS and directly linked that diagnosis to the worker's employment as a custodian. The representative referred to two studies which the physician had identified in his report as supporting that the worker's injury was related to her employment and which had been provided to the panel in advance of the hearing.
The worker made a detailed and comprehensive presentation at the hearing, describing her daily job duties with reference to a written outline of her duties and photographs of the worksite and of the equipment and supplies she used to perform her work duties, which had been submitted in advance of the hearing. The worker also described the change in her job duties during the three holiday break periods each year where she was required to perform heavier and more intense cleaning duties, and her hands, wrists and arms were constantly being used.
The employer did not participate in the appeal.
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, as defined in the Act. The panel is unable to make that finding.
The worker's position is that her bilateral carpal tunnel syndrome was the direct result of her employment. It is the panel's understanding that occupational risk factors for carpal tunnel syndrome include repetitive and forceful gripping/grasping, awkward wrist positions, and vibration. The panel further accepts the WCB medical advisor's February 21, 2017 opinion that:
The same factors that contributed to the initial development of CTS are believed to contribute to subsequent recurrence. Workplace factors would include repetitive and forceful gripping/grasping, sustained awkward wrist posture, exposure to cold and vibration.
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 is satisfied that the evidence does not support that the worker suffered an acute injury arising out of her employment.
The worker referred to the defective swing machine which she was using starting after March 2015 and which she said really started to vibrate in July 2015, as being particularly hard on her wrists and hands. The panel notes that the worker went on to state that "in reality it is all of my job duties that led to this horrible syndrome…I believe the cause of my carpal tunnel syndrome is the repetitious movements of the wrist and hands." The panel is satisfied that the evidence further shows that the use of the swing machine was not constant, that the worker started to avoid using that machine in the following months because it was not working properly, and that a new machine was ordered in the summer of 2016.
While the evidence also shows that the worker's physician advised her in December 2016 not to use the swing machine, in the panel's view it is unclear whether or to what extent the worker had been using the swing machine and what prompted such a restriction at that time.
The panel is further satisfied that the worker did not suffer a cumulative injury arising out of her employment.
The panel notes that the worker was unclear as to when she started experiencing further difficulties with each of her wrists. The panel finds that the worker was a poor historian in this regard. The worker had surgery for CTS on her left and right wrists in 1999 and 2000, respectively. The worker initially indicated that her symptoms started in 2015, or two or three years prior to filing her claim. In response to later questioning, she stated that her symptoms came on gradually, noting that her wrists were fine from 2003 to probably 2008, but after that they were painful, with the pain gradually increasing. The evidence of one of her co-workers in January 2017 was that he had known her for six years and she had been complaining about her wrists the whole time.
The panel accepts that the worker used her hands, wrists and arms extensively throughout her shift, but is unable to characterize her duties or position as involving repetitive forceful gripping or repetitive awkward positioning of the hand and wrist. The panel carefully considered the worker's job duties, as described, with particular attention to her hand and wrist movements. 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 or contributed to her CTS.
The panel's general impression of the worker's job duties was that her work was relatively fast-paced. The panel accepts that a large part of the worker's activities involved using her wrists, but finds that the tasks she performed were varied, involving different movements of her wrists, many of which were in a neutral position, and generally did not involve the degree of force or frequency which would result in CTS.
The panel further finds that the worker's job duties and activities as described are not peculiar to or characteristic of her occupation or peculiar to her particular employment within the meaning of the term "occupational disease" under the Act. The panel accepts that the studies which the physician with an interest in occupational medicine provided appear to suggest that custodians may have somewhat higher risk of developing carpal tunnel syndrome (and a number of other conditions) than certain other occupations, but is unable to find that the evidence in this case supports that a causal relationship exists between the worker's job duties and her bilateral carpal tunnel syndrome.
In conclusion, the panel is satisfied, on a balance of probabilities, that the evidence indicates that the worker was symptomatic or hurting at work, but is not satisfied that she was injured at work or that her CTS was caused by or causally related to her work duties.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment, as defined in the Act. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of January, 2020