2003 ONWSIAT 2427
WORKPLACE SAFETY AND INSURANCE
APPEALS TRIBUNAL
DECISION NO. 2006/03
[1]
This appeal was heard in Windsor on October 20, 2003, by a Tribunal Panel consisting of:
R. McClellan : Vice-Chair,
M. Meslin
: Member representative of employers,
F. Jackson
: Member representative of workers.
THE APPEAL PROCEEDINGS
[2]
The worker appeals the decision of the Appeals Resolution Officer (ARO) Mr. Nethersole,
dated July 30, 1999. That decision concluded that the worker did not have initial entitlement for
bilateral carpal tunnel syndrome on a disablement basis, on the grounds that the evidence did not
support a relationship between the worker’s bilateral carpal tunnel syndrome and her
employment with the accident employer.
[3]
The worker appeared and was represented by Dr. J.C. Fedoruk, a physician. The employer
was notified but chose not to participate.
THE RECORD
[4]
The Panel considered the material included in the Case Record prepared by the Tribunal
Counsel Office (Exhibit #1). In addition, we considered Addendum No.1, (Exhibit #2); the
Hearing Ready Letter, (Exhibit #3).
[5]
The Panel also heard oral evidence from the worker. Submissions were made by
Dr. Fedoruk.
THE ISSUES
[6]
The question before the Panel is whether the worker has initial entitlement for bilateral
carpal tunnel syndrome arising on a disablement basis from the worker's employment. The Panel
must determine whether the worker's employment with the accident employer was a significant
contributing factor to the development of the worker's bilateral carpal tunnel syndrome or,
whether the worker had a pre-existing carpal tunnel syndrome which was aggravated by her
employment or, whether there is no relationship between the worker's carpal tunnel syndrome
and her employment.
THE REASONS
(i)
[7]
Background to the case
The worker is a 43-year-old woman who worked as a production worker in an auto
assembly plant. She started work with the accident employer on February 26, 1996. Her first
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Decision No. 2006/03
duties involved lifting the hood of each van as it passed on the assembly line and recording the
serial number. Each van was done twice and in a single shift, the worker would raise and lower
a van hood with both hands, palms up, between 900 and 1000 times. After the first three weeks
of her employment, she switched to wiping down van tops and removing rubber stripping from
roof support rods. There followed a three-week layoff, after which the worker returned to work
and began the job of spot welding. A detailed description of the mechanics of the spot welding
job is found at page 79 and 80 of the Case Record.
[8]
In his decision, the ARO wrote that the worker had claimed that she felt carpal tunnel
symptoms as early as February/March 1996, that the symptoms receded during the layoff and
that they became acute when she began the spot welding job.
[9]
On June 23, 1996, bilateral carpal tunnel decompression surgery was performed on the
worker at Windsor Regional Hospital by Dr. Sion.
[10]
Prior to working in the auto assembly plants, the worker worked for 18 years as a waitress.
[11]
In his decision of July 30, 1999, the ARO rejected the opinion of the treating neurologist,
Dr. H. Desai, who had stated: "I agree that [the worker’s] carpal tunnel syndrome is likely due to
repetitive movements of the wrist which was due to working as a waitress for 18 years and
subsequently working at the… minivan plant." The ARO's view was that Dr. Desai's opinion
was "more on the basis of a possibility rather than the probability." Both the Claims Adjudicator
and the ARO found, on the basis of the medical evidence, that there was no pre-existing
condition and that the worker’s bilateral CTS was not work related.
(ii)
The medical record
[12]
The Form 8 was completed by the family physician, Dr. David Sion, on July 4, 1996, with
a diagnosis of bilateral carpal tunnel syndrome.
[13]
The neurologist, Dr. Hiren Desai, reported on May 23, 1996 that the worker had moderate
to severe bilateral carpal tunnel syndrome. He advised decompression surgery and referred her
to a neurosurgeon. He also advised that the worker should be tested for thyroid function, noting
that highpoint thyroid can sometimes cause carpal tunnel syndrome. Subsequent thyroid tests
reported negative.
[14]
On July 25, 1996, Dr. D.M. Hanson, a General Practitioner reported carpal tunnel
syndrome from "repetitive work."
[15]
Dr. M. Sharma conducted EEG tests on April 15, 1997 and reported bilateral median
neuropathy, worse on the left side.
[16]
On January 30, 1998, the neurologist Dr. Desai wrote to the worker's representative as
follows:
I agree that the worker's carpal tunnel syndrome is likely due to repetitive movements of
the wrist, which was due to working as a waitress for 18 years and subsequently working
at the… mini van plant. Even the short duration of her work at [the] mini van plant
would be sufficient to produce symptoms of carpal tunnel syndrome which could be
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Decision No. 2006/03
asymptomatic for a long time and then have become symptomatic when she started
working at the … minivan plant.
[17]
In Board Memo #5, dated October 23, 1996, the Board medical consultant, Dr. Chain,
wrote: "there is likely pre-existing latent or incipient asymptomatic CTS to have been aggravated
so readily and quickly with such a short exposure history. Otherwise, it does not appear
compatible solely on the basis of her spot welding in a month's time."
(iii)
The worker's testimony
[18]
The worker testified as follows. She stated that she began work with the accident employer
in March 1996, as an assembly-line worker in a van plant. Prior to this job, she had worked for
18 years as a waitress.
[19]
Before starting work with the accident employer, she stated that she had been given a
thorough medical examination by the company medical director. The testing included
examination of the worker's hands and wrists and involved turning and rotating both wrists. No
problems were seen at that time, she said.
[20]
She testified that she had no prior history of hand/wrist problems prior to joining the
accident employer, during all the years that she worked as a waitress.
[21]
She described her first job in the van plant. She was required to write down the serial
number of the vans on the assembly line. To do this, she had to lift up each van hood, hold it
open, memorize half the serial number, close the hood, and write down the numbers that she
could remember. Then she would repeat the process to memorize the rest of the serial number.
During a single shift, she would open and close the van hoods 1000 times.
[22]
The worker stated that she did this job for three weeks and that her wrists and hands were
sore but the pain was not bad enough to prompt her to see a doctor. She also stated that she had
been told by her co-workers not to complain before her three-month probation was up or she
would lose her job.
[23]
After three weeks, she said, she was moved to a second job that involved tearing rubber
strips off roof support rods. She would tear 14-inch rubber strips off the rods two strips at a
time, using both her left and right hand to pull the rubber off at the same time. Considerable
force was required and she had to wrap the end of the strip around each hand to pull it off the
rod. This action was repeated 500 times per shift. This job made her hands worse, she said, and
the pain was in the same area: across the wrists, and between the knuckle and fingertips. There
were both pain and numbness after one week on this second job.
[24]
After one week on this job she was laid off for three weeks, she said, and during this time,
her hands got better.
[25]
She testified that she was called back after a three-week layoff and was given a job as a
spot welder, using two different spot welding guns to put 10 welds in each van with one gun and
15 welds with the other, as the vans moved down the line, doing 240 vans per shift. She stated
that considerable force was needed to manipulate these guns.
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Decision No. 2006/03
[26]
After about one month on this job, the worker stated that her hand symptoms of pain and
numbness were so bad that she went to her family physician, Dr. Hanson, who immediately
referred her to Dr. Desai and then to the hand specialist, Dr. Sion.
[27]
She said that moderate to severe carpal tunnel syndrome was diagnosed by Dr. Hanson,
and Dr. Sion did decompression surgery on her right hand in July, 1996. She was off work until
October 1996. During that time, she said that her left hand improved considerably and that the
surgery on her right hand was successful.
[28]
She stated that she returned to work in October 1996 to her regular job of spot welding and
that she had no further lost time until she had the second carpal tunnel surgery on her left hand in
June 1999. She stated that the left-hand pain had developed slowly and by 1999 the left-hand
was very sore, with numbness. She was off work for three months and then she returned to
work, working one month on light-duty and then returning to her regular spot welding job.
[29]
The worker testified that she was given a wrist support for her right wrist in 1996, which
she continues to wear and a second support for the left wrist in 1999, which she also continues to
use.
[30]
She said that these two decompression surgeries were successful and that the only
remaining symptom is some reduced strength in her hands. She is able to continue her job as a
spot welder with the accident employer to this day.
(iv)
Submissions of the worker's representative
[31]
Dr. Fedoruk reviewed the medical evidence in the Case Record. He submitted that the
report of Dr. Desai indicates that the worker would have developed some tightening in the carpal
tunnel characteristic of carpal tunnel syndrome but that the condition was asymptomatic before
she began working with the accident employer in February 1996 and that there was no functional
impairment before that time.
[32]
He submitted that the repetitive nature of the worker's job as described in her testimony
was completely sufficient to cause the functional impairment which required two surgical
decompressions in 1996 and in 1999.
[33]
Dr. Fedoruk argued that the first job which required the worker to lift and close the van
hoods 1000 times a day over a three-week period, would have been sufficient to cause the
condition to become symptomatic and that the characteristic functional impairment of carpal
tunnel syndrome, which is pain, swelling, inflammation and numbness in the hands and wrists,
manifested itself at the auto assembly plant because of the repetitive nature of the worker’s job
duties.
[34]
Dr. Fedoruk pointed out that even after the successful right carpal tunnel surgery in 1996,
which did relieve the worker's functional impairment and allowed her to return to work at her
regular duties, the report of Dr. Sharma shows that the condition of right wrist neuropathy was
still evident. In other words, the carpal tunnel syndrome condition was present even after the
functional impairment had been successfully relieved through surgery.
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(v)
Decision No. 2006/03
Law and policy
[35]
On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (“WSIA”) took effect.
However, pursuant to section 102 of the WSIA, the Workers' Compensation Act continues to
apply to pre-1998 injuries. Thus the pre-1997 Act continues to apply, as amended by the WSIA.
[36]
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 applicable to this appeal. We have considered these policies as
necessary in deciding this appeal.
(vi)
The Panel’s conclusions
[37]
The Panel finds the worker to be a credible witness, whose testimony was given in a
straightforward manner without exaggeration and which was corroborated by the material in the
Case Record.
[38]
The Panel finds that the worker suffered from a bilateral carpal tunnel syndrome which
arose as a result of a disablement accident between the time she started work with the accident
employer on February 26, 1996, and the time of her right carpal tunnel surgery in July 1996. She
has initial entitlement for bilateral carpal tunnel syndrome.
[39]
In our view, there is no evidence of a pre-existing carpal tunnel condition prior to
February 26, 1996, although there is some speculation in the medical file that there may have
been one. In the Panel’s opinion, the existence of a pre-existing condition has not been
established. The worker was given a thorough medical examination in the fall of 1995, as a
condition of employment with the accident employer, and this examination included an
examination of her hands and wrists by the company Medical Director. No signs or symptoms
of carpal tunnel syndrome were found at that time: if they had been suspected, the worker would
not have been hired for the position of production worker on an auto assembly line. The worker
may well have had a susceptibility to carpal tunnel syndrome but there is no evidence of preexisting carpal tunnel syndrome.
[40]
The nature of the worker's employment was intensely repetitive from day one. Her first job
required her to lift and close the hood of a minivan 1000 times a day. The second job, tearing
strips of rubber off the roof support rods, was equally repetitive and stressful to her hands and
wrists. By the end of the third week of employment, the signs of wrist/hand pain were evident,
according to the worker's testimony, which the Panel accepts.
[41]
The worker's spot welding job, which required the manipulations of spot welding guns in
the performance of some 6000 spot welds per shift, (25 welds x 240 vans) was even more
repetitive and stressful to the worker’s hands and wrists.
[42]
In Tribunal Decision No. 2873/01, the Panel in that appeal awarded entitlement to a worker
for carpal tunnel syndrome and attributed the worker's carpal tunnel condition to employment
which, while of relatively short duration, required hand activity that was both “repetitive and
forceful.” The Panel in that case noted that the medical literature does not stipulate that exposure
over a long period is required to develop CTS. That Panel cited the medical discussion paper on
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Decision No. 2006/03
Carpal Tunnel Syndrome prepared for the Tribunal by Dr. Brent Graham, which stresses the
relationship between "repetitive and forceful" hand activity and carpal tunnel syndrome in the
medical literature.
[43]
In the case before us, it is this Panel’s opinion that it is entirely within the realm of
probability that the worker's job duties, which required forceful and repetitive hand activity, were
the significant contributing factor in the development of her bilateral carpal tunnel syndrome on
a disablement basis between February 26, 1996 and July 1996.
[44]
The evidence supports that periods of lost time or layoff resulted in an improvement of the
worker’s carpal tunnel condition, while her successive returns to work after the layoff in 1996,
and after the surgery in 1996, resulted in an increase in carpal tunnel syndrome symptoms. The
two compression surgeries were almost entirely successful in relieving the worker's symptoms of
pain, swelling and numbness, although she is left with residual loss of strength in her hands and
wrists.
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Decision No. 2006/03
THE DECISION
[45]
The appeal is allowed.
[46]
The Board is directed to award initial entitlement to the worker for a bilateral carpal tunnel
syndrome arising from the accident by disablement with the accident employer effective
July 1996.
[47]
The Board is directed to provide the worker with an assessment for a NEL award, to
compensate the worker for any uncompensated loss of earnings and to determine the appropriate
level of benefits flowing from this entitlement.
DATED: November 6, 2003
SIGNED: R. McClellan, M. Meslin, F. Jackson