WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 209/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 209/16 BEFORE: V. Marafioti : Vice-Chair S. T. Sahay : Member Representative of Employers R. W. Briggs : Member Representative of Workers HEARING: January 22, 2016 at Toronto Oral DATE OF DECISION: March 3, 2016 NEUTRAL CITATION: 2016 ONWSIAT 573 DECISION(S) UNDER APPEAL: WSIB ARO decision dated November 26, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Bennett, Paralegal Did not participate N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 209/16 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer ( ARO ) H. Mohamed dated November 26, That decision concluded that the worker did not have initial entitlement to bilateral carpal tunnel syndrome (CTS). [2] The worker attended and provided testimony. Mr. Bennett provided submissions on her behalf. (ii) Background [3] The background information is succinctly outlined in the Appeals Resolution Officer s decision and noted in the Case Record. The Panel has reviewed all the documentary evidence, testimony and submissions and summarizes the background facts as follows. [4] The worker is employed as a registered nurse in the Dialysis Unit of a local hospital. The worker indicated that she began working in this area in March [5] The worker advised the Eligibility Adjudicator that she began to notice bilateral wrist and hand pain in 2005 and had left CTS surgery in The left wrist injury was not reported as work-related to the employer. The worker did report a right wrist CTS injury as a WSIB claim. The worker developed right wrist pain and numbness which she attributes to her nursing duties within the Dialysis Unit. She reported this to her employer with an accident date of September 6, [6] The Workplace Safety and Insurance Board ( WSIB or the Board ) after reviewing the physical demands analysis for the job that the worker was doing, determined that the worker s duties did not cause the development of her condition and denied initial entitlement. The worker requested a re-consideration of this decision and also requested a decision regarding the left wrist as well. The Eligibility Adjudicator in a decision dated January 30, 2013 denied the left wrist CTS and reconfirmed the denial of the right wrist injury. The worker objected and the Appeals Resolution Officer in a decision dated November 26, 2013 also denied the worker s objection. The ARO concluded that the worker did not have initial entitlement for bilateral Carpal Tunnel Syndrome. (iii) The issue [7] The Panel must determine whether the worker has initial entitlement for bilateral Carpal Tunnel Syndrome. (iv) Law and Board policy [8] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (the WSIA ) took effect. Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies as applicable to this appeal. The Legal Services Division of the Board confirmed that the following policy packages, Revision #9, were applied to the subject matter of this appeal:

3 Page: 2 Decision No. 209/16 Package No. 241 Initial Entitlement Package No. 300 Decision Making/Benefit of Doubt/Merits and Justice [9] The policies will not be duplicated here for practical reasons. As the x-ray of the right wrist was dated September 6, 2012 and the worker went off work on September 8, 2012, the Workplace Safety and Insurance Act applies. In particular the Panel noted section 2 of the Act which states the following: 2. (1) In this Act, accident includes, (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment; ( accident ) [10] The Panel also notes that section 13 states the following: 13. (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. (v) The Panel s analysis and conclusions (a) The decision [11] After considering all the evidence in this appeal, the Panel finds that the worker s bilateral Carpal Tunnel Syndrome is not compensable. The Panel in reaching this conclusion found that, on a balance of probabilities, it has not been shown that the worker s occupational activities made a significant contribution to the development of her Carpal Tunnel Syndrome condition. The Panel arrived at this conclusion based on the following factors. (b) Analysis [12] The worker began her employment in the unit on March 2, She described her duties and the Panel also reviewed and considered them fully. It is the worker s position that the nature of her work duties was the causal agent in the development of the bilateral CTS. Mr. Bennett submitted that there was a causal relationship between the job duties and the resultant bilateral carpal tunnel syndrome. (c) The medical evidence [13] On December 7, 2006, Dr. A. ElMaraghy, orthopaedic surgeon, provided a letter for Dr. J. Stoica, the worker s family physician, that the worker was working as a registered nurse and experienced pain in both shoulders, the right greater than the left. The worker also had neurologic symptoms. The worker was diagnosed with left Carpal Tunnel Syndrome by Dr. ElMaraghy in April 2007 and surgery was performed in April In 2011 Dr. A. ElMaraghy indicated that the worker was complaining of right Carpal Tunnel Syndrome symptoms. The worker subsequently saw Dr. A. Chaiton who reported on December 14, 2011 that the worker was complaining of right-sided problems. The worker was referred by

4 Page: 3 Decision No. 209/16 Dr. W. Lu, the worker s family physician, with regards to her Carpal Tunnel Syndrome of the right hand. A right Carpal Tunnel Syndrome surgery was performed by Dr. A. Schlosser on December 3, [14] The Panel also considered the medical discussion paper entitled Carpal Tunnel Syndrome which was prepared for the Tribunal by Dr. B. Graham, Orthopaedic Surgeon. Dr. Graham stated that Carpal Tunnel Syndrome is a very common clinical condition. In particular the Panel noted that Dr. Graham stated in the report that hand activities are causally related to Carpal Tunnel Syndrome only when there is repetitive and forceful activity. (d) The job duties and work performed [15] In describing the nature of the worker s activities at work, it is important to have an understanding of the nature of the work and the approach that the worker had. The Panel does not doubt that the worker took work seriously and performed whatever was necessary in the course of her activities to provide professional patient care. [16] In performing her work, the Panel noted in particular that it was necessary for the worker to use her hands and wrists. The Panel also reviewed the physical demands analysis summary that was provided and the worker s testimony of the work duties. In particular the Panel noted that the worker needed, for example, to perform lifting and pulling of syringes using the equipment touchscreen doing computer work, charting patient s on the computer and pulling tubing out. [17] The worker needed two string dialysis machines with proper tubing and filters while standing and forward reaching before each patient. There was hanging of bags on the dialysis machine and carrying appropriate solutions to the machine for use. The worker needed to take the patient s blood pressure and temperature before and after dialysis treatment at the patient s chair. The worker needed to connect intravenous lines to the patient and the worker needed to monitor the patient and keep the patient in a comfortable position. The worker needed of course to also unhook the tubing and bags from the dialysis machine and unhook patients from the dialysis machine and attend to them. (e) Conclusions [18] The Panel reviewed carefully the job duties and considered the worker s testimony, submission from Mr. Bennett and the medical evidence. Based upon an objective review of the evidence, the Panel finds that the evidence does not support a conclusion that the activities which the worker performed in the course of her employment represents a probable significant contributing factor in the development of her Carpal Tunnel Syndrome. The worker indicated that there is repetitive forceful movement and a lot of pushing and pulling involved in her work activities. However, the Panel finds that although the worker was required to use her hands and wrists on an ongoing basis, there is little evidence to indicate that the worker performed the activities in a repetitive and forceful manner. The Panel relied on the facts of the case, the physical demand analysis of the job, the medical reporting and Dr. Graham s discussion paper along with the Tribunal Case Law. Considering the evidence, testimony and submissions, the Panel has determined that the nature of the workplace duties was not compatible with the development of the bilateral Carpal Tunnel Syndrome. [19] The Panel has concluded that the workplace is not the cause for the worker s CTS in the sense that the workplace was not a significant contributing factor in the development of the

5 Page: 4 Decision No. 209/16 worker s bilateral Carpal Tunnel Syndrome. The origins of the disease in the absence of a specific trauma, has no known cause; it can occur in a non-working population at a slightly higher rate of incidence; and its prevalence in women is higher than men. [20] A number of Tribunal Panels have relied on the discussion paper prepared by Dr. Graham when analyzing the Carpal Tunnel Syndrome causation in its relationship to workplace conditions. Dr. Graham has concluded that the cause of the disease the abnormality of the median nerve function due to compression of the nerve within the carpal tunnel is for the most part unknown. In addition, the report states that the condition and its prevalence can occur within non-working population at a slightly higher percentage than the working population. [21] The Panel accordingly has concluded that the workplace is not the cause of the worker s Carpal Tunnel Syndrome. There is no evidence of a specific trauma to the worker s wrists and the worker s duties were varied and were not repetitive and forceful which are the requirements to develop Carpal Tunnel Syndrome. Dr. Graham indicated the relation between exposure to repetitive hand use and Carpal Tunnel Syndrome has been carefully studied, no significant increase in the risk of developing this condition can be identified. However, Dr. Graham states there is an exception: The exception would be where the repetitive activity requires both frequent and forceful movements (emphasis added). [22] In conclusion, on the evidence before the Panel, the Panel concludes that the hand and wrist activities in this worker s workplace were not forceful and repetitive to the extent that it can be clearly determined that they were the significant factor in the development of the worker s Carpal Tunnel Syndrome. In summary, the Panel finds that there is insufficient medical evidence before us to establish a causal connection. The Panel is not satisfied that there are medical reports from any treating physicians which clearly link the condition to the workplace. In the absence of this, coupled with the Discussion Paper noted above, we cannot, on a balance, find for the worker.

6 Page: 5 Decision No. 209/16 DISPOSITION [23] The worker s appeal is denied. [24] The diagnosed condition of bilateral Carpal Tunnel Syndrome is not caused by the workplace activities nor was the workplace a contributing factor to the development of the disease. DATED: March 3, 2016 SIGNED: V. Marafioti, S.T. Sahay, R.W. Briggs