Decision #126/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is not acceptable. A teleconference hearing was held on April 20, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On April 28, 2020, the employer submitted an Employer’s Incident report to the WCB indicating the worker’s report of developing carpal tunnel syndrome (“CTS”) in their right hand due to repetitive job duties performed beginning in November 2019.
The worker sought medical treatment from their family physician on April 28, 2020 reporting pain and numbness in the 1st, 2nd and 3rd fingers of their right hand. The treating physician noted a normal range of motion and neurovascular exam and referred the worker for a nerve conduction study to rule out CTS. The physician recommended the worker would not require time away from work as symptoms were not affecting their ability to work.
When the WCB contacted the worker on May 11, 2020 to discuss the claim, the worker advised that symptoms began after they helped out in another area during a busy time in November and December 2019, noting the duties performed in that role were repetitive and often required overtime. Further, the worker advised they reported their difficulties to the manager in approximately December 2019 or January 2020. The worker noted initial symptoms of tingling from their thumb to ring finger on their right hand began at night approximately in November 2019, progressing by late February 2020 to a point of waking them up at night with increased pain. The worker also noted they would avoid job duties that worsened their symptoms, and the employer was rotating them to different positions to ease their symptoms. The worker confirmed their treating physician made a referral for a nerve conduction study that had not yet occurred at that time.
On May 12, 2020, the WCB spoke with the employer who advised they were unaware of the worker’s right hand difficulties until they filed their WCB claim. The employer stated the worker’s supervisor confirmed the worker had mentioned difficulties but did not at that time relate those difficulties to the job duties. The employer confirmed the worker was reassigned to help out in a busy area during November and December 2019, with those job duties being performed for one hour up to a full day during that time.
The WCB advised the worker on May 25, 2020 that the claim was not accepted as the evidence did not support that the worker’s right hand difficulties developed from their job duties. While the worker’s job duties involved some repetitive movement, there was no evidence to support the duties required the combination of high force and repetitive motions that were commonly associated with the development of occupational CTS. The WCB also noted the worker had two non-occupational risk factors that could have led to the development of CTS.
The worker requested reconsideration of the WCB’s decision to Review Office on July 16, 2020, noting that non-occupational risk factors should not have been considered in making the decision to deny their claim and further, that they did not have issues with their right hand prior to helping out in a different area in December 2019. The worker also noted their symptoms of pain and numbness subsided when they had recently taken time off but returned within two days of returning to work.
Review Office found on September 8, 2020 that the worker’s claim was not acceptable. Review Office noted the medical evidence on file did not support a diagnosis of CTS or a relationship between the condition and the worker’s job duties. Review Office also found the worker’s job duties as described were not sufficient to cause the worker to develop CTS and as such, could not establish a relationship between the worker’s job duties and their right hand difficulties.
The worker filed an appeal with the Appeal Commission on November 26, 2020. A teleconference hearing was scheduled and held on April 20, 2021.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. When the requested information was received, it was forwarded to the interested parties for comment. On October 13, 2021, the appeal panel met further to discuss the case and render its final decision on the issue 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.
The Act sets out the definition of an accident in s 1(1) 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...
When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.
The worker represented themself in the hearing and provided an oral submission to the panel outlining why the appeal should be allowed. The worker also provided testimony in response to questions posed by members of the appeal panel.
The worker’s position is that the right CTS was caused by and the result of the job duties with the employer including both the regular job duties and the alternate duties undertaken for a period in November 2019. The worker stated their belief that the repetitive job tasks as described below caused the symptoms in their right hand that were ultimately diagnosed as CTS. For this reason, the WCB should accept the worker’s claim as arising out of repetitive job duties and the appeal should be granted.
The worker addressed the WCB comments as to non-occupational risk factors, noting that their pre-existing non-compensable health condition is under control and that their overall health has improved due to some lifestyle changes made prior to the diagnosis of CTS. The worker maintains that these conditions are not related to the CTS diagnosis.
The worker described their work history, noting that in previous employment with another employer, they worked for 8 years doing a job that involved “a lot of repetitive motions” without any issues related to their right hand. The worker stated that they first noted symptoms that they relate to the CTS diagnosis approximately 6 – 7 months after beginning the job with the employer. The worker clarified that although they stated in the Notice of Injury to Employer form that the injury arose out of working in the temporary position during November 2019, their ongoing job duties also involve “a lot of repetitive motion” including picking up items from a line and packing those items, and lifting boxes of up to 45 pounds, sometimes heavier.
The worker stated that the right CTS was treated with surgery on December 22, 2020 and that since then they continue to have issues with their 3rd and 4th fingers, including numbing and tingling. The worker stated they now wear a compression glove and a splint while working but continue to have some issues with those fingers.
In response to questions from members of the appeal panel, the worker provided further information as to the circumstances surrounding their left CTS diagnosis and treatment, relating that diagnosis to job activities in their employment at that time, some 20 years earlier, with another employer.
The worker further described both their usual job duties in the current employment as well as in the alternate role they filled in November 2019. The worker confirmed that they worked in the alternate department “just for a few hours” in November 2019, on two consecutive days, and that at that time, they notified their supervisor of issues with their right hand. These job duties involved activities of folding and rolling items into tight bundles and packing the bundles into boxes. The worker described their usual job duties as including filling, gripping, lifting, cutting (with a box cutter) and taping (with a roller) boxes of varying sizes and weights over the course of an 8-hour shift, with overtime during busy seasons. The worker estimated that they would do this approximately 10-20 times per hour through each shift. In addition, the worker would have to collect items to fill the boxes as required, from a line or table, or off a shelf.
The worker confirmed to the panel that their symptoms worsened early in 2020 but noted there was no change in duties at that time, stating “I tolerated it for as long as I could until I couldn’t tolerate it anymore”. At some point in February 2020 the worker described that their right arm and hand symptoms were causing night-waking. At that time the worker was using a splint obtained from a pharmacy to try to control the pain. The worker confirmed that other than taking periods of vacation from time to time, they continued to work through to the December 2020 surgery and that during any time away from work their symptoms would diminish, but would return again with the return to work duties.
In sum, the worker’s position is that as a result of the repetitive job duties undertaken in the course of their employment, they developed CTS in their right arm. Therefore, the claim should be accepted, and the appeal granted.
The employer did not participate in the appeal.
The issue for determination is whether or not the claim is acceptable. In order to grant the worker’s appeal, the panel must determine that the worker was injured as a result of an accident as defined by the Act, arising out of and in the course of their employment. In other words, we must find that there has been an injury caused by an event or duties arising out of and in the course of employment for the claim to be acceptable. The panel was not able to make such a finding, as outlined in the reasons that follow.
The panel reviewed the evidence and considered whether there is support for the worker’s position that their diagnosis of right CTS is causally related to participation in their employment activities. The medical evidence before the panel confirms, based on clinical findings including nerve conduction study conducted on September 5, 2020, the worker’s diagnosis of “...worsened carpal tunnel syndrome despite bracing on the right side with history of successful left-sided surgery. The electrodiagnostic studies...demonstrate bordering on severe right median neuropathy at the wrist.” The panel noted that the physical medicine specialist does not provide any comment on possible causation, although recording that the worker stated that their symptoms worsened with use of wrist braces and come on “intermittently through the day with activities like driving, writing, and reading, holding a phone or household work.”
The worker’s treating physician, who undertook carpal tunnel decompression surgery to address the worker’s CTS on December 20, 2020 also has not provided any opinion as to causation. The physician’s chart notes indicate the worker provided a history on April 28, 2020 indicating that they do “a lot of repetitive use” in the course of their work and record the worker’s statement on November 30, 2020 that their symptoms were “aggravated at work recently because this is [their] busy time.” The panel noted the worker’s comments to the physician are consistent with the worker’s testimony in the hearing.
The panel also noted that there is evidence on file, confirmed by the worker’s testimony, that the worker was previously diagnosed with and treated for left arm CTS. Although the worker stated their belief that this diagnosis was related to workplace activities and that a WCB claim had been made in that regard, there is no evidence before the panel to confirm that.
In considering the worker’s position, in light of the medical evidence available, the panel also sought an opinion from the WCB medical advisor as to the recognized occupational risks or causes for development of CTS. The WCB’s chief medical officer set out, in a response to the panel dated June 17, 2021, shared with the worker, that:
“Occupational exposure to a combination of i) highly repetitious wrist/hand motions, ii) forceful wrist/hand exertions, most clearly exemplified by forceful (firmly resisted) grasping and iii) frequently deviated (from neutral)/awkward wrist postures has been epidemiologically established as increasing the risk for CTS.”
The panel accepts and relies upon the WCB chief medical officer’s evidence, and in light of the known occupational exposures that increase the risk of developing CTS, considered the worker’s testimony as well as the file information from the employer in terms of the worker’s specific job duties. We noted the worker’s description of a range of job activities and duties over the course of 2019 and 2020, both in their regular job and in the alternate work done in November 2019. By the worker’s own description, their regular job duties include cutting and taping boxes, selecting items of various sizes and weights from a line, table or shelf and packing boxes, and lifting and moving those boxes. The worker began in this role in spring 2019 and continued with these duties through 2019 and 2020. For a period of two days in November 2019, the worker was moved to an alternate role, which they described to the panel as involving tightly rolling items and packing them into boxes, as well as carrying those boxes. The panel also noted the worker’s testimony that they undertook these duties only for a few hours on each of two consecutive days.
On the basis of the worker’s testimony as to the nature of their job duties as well as the information the employer provided to the WCB, the panel finds that there is a lack of evidence to support a finding that the worker’s continuing, or alternate job duties involved the combination of highly repetitious wrist and hand motions, forceful firmly resisted gripping and frequently deviated, awkward wrist postures such as are known to increase the risk of development of CTS. We find that the worker’s job duties involve a variety of wrist and hand movements that include, from time to time, awkward wrist postures, forceful gripping or repetition, but there is no evidence that these are sufficiently forceful, highly repetitive or frequently deviated to result in the confirmed diagnosis of right CTS. The evidence of the worker’s previous diagnosis of left CTS further supports a finding that the present diagnosis is not related to occupational causes in this case. While the worker related their symptom exacerbation directly to their work duties, the medical evidence further supports a finding that the worker’s symptoms worsened as a result of their activities of daily living which are not job-related.
The panel is therefore satisfied, on the standard of a balance of probabilities, that the worker’s right CTS did not develop as the result of and was not caused by the worker’s continuing occupational duties. Therefore, we conclude the worker was not injured as a result of an accident, and in the absence of evidence of an injury resulting from an accident, the worker’s claim is not acceptable. The worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of November, 2021