Decision #101/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on June 16, 2021 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 August 26, 2020, reporting an injury to both of his hands with an incident date of June 1, 2018. The worker went on to state that his claim was for a cumulative injury to his hands, which he related to repetitive keyboard and mouse work over a period of 25 years. The worker noted he used the mouse with his right hand. He reported he first noticed his symptoms approximately five years earlier, in 2016, while he was at work. He said he first experienced tingling in all of the fingers on both hands, with numbness, and was now having difficulties with driving. The worker reported an increase in his workload from 2015 through to his retirement in 2018, and noted he told his supervisor the keyboarding he was doing was "…too much and my hands were going numb."
On September 1, 2020, the WCB received a Doctor's First Report from the worker's family physician for a May 12, 2020 examination. It was noted in that report that the worker was complaining of numbness and tingling in both hands, and the physician reported a positive Tinel's sign. The report indicated the physician provided a diagnosis of bilateral hand numbness/carpal tunnel syndrome ("CTS") and referred the worker to plastic surgery for carpal tunnel repair.
On September 3, 2020, the employer filed an Employer's Accident Report, indicating they were not aware of any incident having occurred on June 1, 2018 and confirming the worker retired on August 8, 2018.
On September 4, 2020, a WCB adjudicator contacted the worker to discuss his claim. The adjudicator noted the worker confirmed he had CTS in both hands, with numbness in his fingers and painful wrists, and had difficulty with daily functions such as driving. The worker also confirmed that his symptoms began approximately five years earlier and had become progressively worse and more painful, with the numbness in his fingers now occurring all the time.
The worker further advised that 75% of his job duties with the employer involved data entry and computer work and he had performed those duties for 25 years prior to his retirement. He confirmed he was right-hand dominant and his data entry duties had increased over the last few years of his employment as the workload increased. The worker also advised that his family physician had diagnosed him with CTS two and a half years earlier, and sent him for a nerve conduction study ("NCS"). He said he was booked for carpal tunnel release surgery for both his wrists, which were being operated on at the same time, on September 10, 2020.
On September 11, 2020, the WCB received a copy of the report of the worker's June 12, 2019 NCS, the results of which were said to be "…consistent with bilateral carpal tunnel syndrome of severe degree." Included with that report was a copy of a May 5, 2020 letter from the treating plastic surgeon, noting the worker had "…left greater than right carpal tunnel syndrome of several years duration," and that the worker wished to proceed with carpal tunnel endoscopic decompression.
Additional information was gathered from the worker and the worker's treating healthcare providers, and on November 4, 2020, the WCB's Compensation Services advised the worker that his claim was not acceptable. Compensation Services found that the worker's job duties did not require forceful and repetitive hand motions, awkward positions, mechanical stress at the base of the palm or vibration, being occupational risk factors for the development of occupational CTS, and that they were unable to establish a relationship between his bilateral arm/wrist difficulties and an accident arising out of or in the course of his employment.
On November 18, 2020, the worker requested that Review Office reconsider Compensation Services' decision, noting that medical studies indicated an association between computer keyboard use and the development of CTS. The worker further submitted that he was not provided with ergonomically correct equipment while working for the employer, and that a prior right upper arm injury from another WCB claim may have contributed to the development of his CTS. On January 28, 2021, the employer provided a submission in support of Compensation Services' decision, and the worker provided a response to that submission on January 29, 2021.
On February 2, 2021, Review Office determined that the worker's claim was not acceptable. Review Office found that the job duties described by the worker were not consistent with the occupational risk factors associated with the development of CTS. Review Office acknowledged the worker's comments regarding his workstation not being ergonomically correct, but noted the evidence on file did not support the worker's duties involved high force, awkward wrist positioning or vibration.
Review Office further found that the worker's CTS was severe in both wrists, which would typically suggest a non-work-related cause, as occupational CTS would generally affect the dominant side of the worker as the one which was most used. Review Office also found that the prior right arm injury would not explain bilateral CTS. Review Office therefore concluded that they were unable to establish the worker sustained an accident as defined by The Workers Compensation Act (the "Act").
On February 19, 2021, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
The Appeal Commission and its panels are bound by 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, 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.
The worker represented himself on the appeal, and was accompanied by his spouse as a support person. The worker made an oral presentation and responded to questions from the panel.
The worker's position was that he developed severe CTS due to the performance of his job duties, and his claim should be accepted.
The worker stated that the majority of his job duties involved meeting with clients, then typing up what they said. He noted that his duties involved constant documentation and keyboard and mouse work, which included preparing extensive reports.
The worker submitted that the last four to five years of his employment were the worst, where he was forced to work with substandard, broken and ergonomically incorrect equipment. The worker noted, in particular, that he was given a used keyboard, which was "wobbly" and had to be propped up with books, as the supports in two of the four corners were broken. The worker indicated that while he had requested a new keyboard, none was provided. The worker submitted that the use of this keyboard created extremely awkward positions for his hands and wrists, and put mechanical stress on his palm, fingers and wrists.
The worker referred to other equipment and conditions as being substandard, broken and/or ergonomically incorrect, including his chair, his desk, and the workstation itself, and submitted that working with this equipment and in these conditions also put him in awkward positions and contributed to the development of his CTS.
In addition, the worker noted that his workload was constantly increasing over the last few years of his employment, which meant he was constantly being forced to do more work with this substandard equipment. As a result, his condition became progressively worse to the point that he required corrective surgery. The worker noted that the surgery had been successful, that he had regained the use of his wrists and that the constant pain was basically gone.
The worker submitted that his doctor and surgeon supported his claim and had told him it was "most likely probable" he got his CTS "from the years of work, of using substandard equipment like that, and the use of a mouse." The worker submitted that this was also supported by information from world-renowned sources.
The worker submitted that his CTS had nothing to do with anything else, that he did not do anything outside of work which would have caused this type of pressure or strains on his wrists.
The employer was represented by its WCB Coordinator, who indicated that the employer agreed with and supported Review Office's decision that the worker's claim was not acceptable.
The employer's representative noted that the nature of the worker's work, according to his description of his job duties, involved primarily computer work. The representative submitted that such duties did not require forceful and repetitive hand motions, awkward positions, mechanical stress at the base of the palm, or vibration, which were necessary for the development of CTS. The employer was of the view, therefore, that the worker's performance of those job duties was not causally related to the development of his severe bilateral CTS, and the Review Office decision should be upheld.
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 an injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.
The panel questioned the worker at length with respect to the nature of his job duties and activities, the equipment he was using, his positioning and the performance of his duties. The panel is not satisfied that the worker's activities and the performance of his duties, as described, on file and at the hearing, involved the type of forceful and highly repetitive movements or duties, awkward positioning, or vibration which is associated with or would be expected for the development of occupational CTS.
The panel acknowledges the worker's assertion that the keyboard and other equipment he was using, particularly in the last few years of his employment, was substandard or ergonomically incorrect. The panel notes, however, that when questioned at the hearing as to who had deemed the equipment to be ergonomically incorrect, the worker stated "I don't know who, nobody deemed it ergonomically incorrect, but to me it didn't seem right. It wasn't built properly, and it wasn't built according to code or standards that are approved or used by you, me or the general public."
The evidence shows that the worker retired in August 2018. In his submission at the hearing, the worker stated that he retired "…the second I was able to, the day I turned 55 because my wrists were killing me…" and for other unrelated reasons. The panel notes that in spite of the worker's assertion that his wrists were "killing me" and his position that his wrist difficulties were the result of his work duties, he did not file his claim until August 26, 2020, or more than two years after he retired.
The worker further submitted that his claim for a work-related injury is supported by his treating physician and surgeon. The panel is not satisfied that this assertion is consistent with the medical evidence which is before us.
The panel notes in this regard that in his report to the WCB dated October 21, 2020, the worker's family physician stated that the worker consulted him in July 2019, describing symptoms consistent with CTS and had expressed at that visit "that symptoms were long-standing." In his report dated May 5, 2020, the treating surgeon noted that he had seen the worker with respect to his "left greater than right carpal tunnel syndrome of several years duration." Neither the physician nor the surgeon made reference in their reports to the worker's symptoms being related to his work duties.
When it was put to the worker at the hearing that none of the medical reports on file seemed to connect his CTS to his work duties, that worker stated that he did not know what was documented. The worker insisted, in response to further questioning, that he told his treating healthcare providers what he was experiencing and what he had been exposed to at work. The worker stated that when he spoke with them, "…they said it's more than a probability that it's work-related because of the repetitive use of the substandard equipment. They said, I mean a lot of people get carpal tunnel syndrome from different things…but if you were subjected to maybe substandard equipment, that might have put undue strain on it and which caused…it." The worker went on to state that "Whether they put it down in writing or not I'm not sure, but that was the understanding I had from both my physician and…my surgeon, that it was work-related and that's why I required surgery."
While the worker also alluded to "world-renowned" sources as supporting his position, the panel is unable to attach any weight to those references or to relate them to the facts of this case.
In conclusion, the panel is not satisfied that the evidence supports that the worker's bilateral CTS was causally related to the performance of his work duties.
The panel therefore finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of his employment. As a result, the panel finds that the worker's claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of August, 2021