WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1322/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1322/11 BEFORE: R. McClellan : Vice-Chair A. Lust : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: June 22, 2011 at Toronto Oral No post-hearing activity DATE OF DECISION: August 5, 2011 NEUTRAL CITATION: 2011 ONWSIAT 1870 DECISION UNDER APPEAL: WSIB ARO decision dated August 18, 2010 APPEARANCES: For the worker: For the employer: Mr. E. Schirru, Lawyer Not participating 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. 1322/11 REASONS (i) The appeal [1] The worker appeals the decision of the Appeals Resolution Officer dated August 18, That decision concluded that the worker did not have initial entitlement for bilateral carpal tunnel syndrome arising out of and in the course of his employment as a residential construction carpenter/handyman. [2] The issue before the Panel is whether the worker has initial entitlement for bilateral carpal tunnel syndrome arising out of and in the course of his employment as a residential construction carpenter/handyman. (ii) Background [3] The worker, now age 50, was employed as a carpenter with a residential construction company beginning in In a Form 6 Report of Injury, dated December 22, 2009, the worker reported a carpal tunnel syndrome with an accident date of March 4, 2004, which he claimed had developed on a gradual onset basis as a result of repetitive drywall repairing, sanding and painting. He stated that wrist braces had been prescribed. Bilateral carpal tunnel surgery was performed in December 2009 and January The worker advised that the accident had not been reported to the employer, which he later explained was due to his misunderstanding that he had arthritis. [4] In the Form 7 Report of Injury dated January 13, 2010, the employer advised that the worker had been laid off in March 2009 and that they had been completely unaware of the worker's carpal tunnel condition until he advised them by telephone on January 4, The employer stated that while the worker claimed he received medical condition treatment for this condition in March 2004, the company records indicated the worker had one day off on March 22, 2004 and that the worker's stated reason had been that his truck a broken down and he needed the day off to have it repaired. The employer also stated that the worker's job duties did not involve prolonged repetitive work. [5] The employer provided a job description for the position of Servicemen as follows: Handyman general duties including: trim repairs, door adjustments, floor squeaks, minor drywall cracks, minor paint touchups, assessment of deficiency for warranty purposes, inspections with homeowners, copying, minor tile repairs, installing window screens and floor registers, installing towel bars, filling in minor trim strips on windows and doors. [6] Board Memo #1 dated January 5, 2010 confirmed the presence of bilateral carpal tunnel syndrome, with initial medical treatment March 4, EMG testing confirmed severe bilateral CTS, and carpal tunnel release surgery was done December 16, 2009 and January [7] In Board Memo #3 dated January 7, 2010, initial entitlement was denied by the adjudicator on the grounds that the worker's job duties did not require repetitive work or the excessive use of power tools. The worker had explained the lack of reporting as due to his mistaken belief that he had arthritis. There had been no lost time between 2004 and his layoff in 2009.

3 Page: 2 Decision No. 1322/11 [8] The decision to deny initial entitlement was confirmed by the ARO decision of August 18, 2010, on the grounds that the worker's job duties with the accident employer were not a significant contributing factor to the development of his bilateral carpal tunnel syndrome. The decision stated: In considering the suggestion that the job duties in general were a significant contributing factor it is important to understand that a significant contributing factor is a cause of considerable effect or importance or one which can be added to the worker' s pre-existing condition in a material way to establish a causal connection. Detailed information outlined that the workers job duties in essence were smaller jobs that did not require extended time to complete. There is a clear paucity to establish frequency and repetitiveness of any power tools. Additionally there is evidence of extended history of bilateral numbness, tingling and pain as well as a right wrist fracture that predates the onset of CTS. (iii) The medical evidence [9] The Physician s First Report from family physician Dr. Sum dated December 17, 2009 gave a diagnosis of carpal tunnel syndrome, with first referral to the neurologist Dr. Temple of July 24, 2009, referral to neurosurgeon Dr. Izukawa October 28, 2009 and left carpal tunnel release on December 16, 2009, with right carpal tunnel release scheduled for January [10] In a letter to the worker's representative dated March 12, 2010, treating family physician Dr. Sum advised that he had been treating the worker since November 2002 and that night numbness and tingling in the hands was first reported March 4, The worker's condition had progressed over the last several years until he was referred to neurologist Dr. Temple, who confirmed carpal tunnel syndrome by EMG test. This was followed with decompression surgery by Dr. Iszukawa on December 16, 2009 and January 27, The prognosis for full recovery was good with the prospect of returning to regular construction work with no permanent impairment. [11] Dr. Sum wrote: It was very likely that his job duties contributed to his condition, particularly the prolonged usage of power tools. [12] In a letter dated March 11, 2010, Dr. D Izukawa advised the worker s representative that: 1. His job duties did contribute to his condition but I am not in a position to attribute causation to his job alone. For example, he had a prior history of right wrist fracture as a child which may have also been a contributing factor. 2. He does not require physiotherapy treatment for his condition. 3. He has not been left with any permanent impairment. He has completed bilateral staged carpal tunnel decompression and he is doing well following these surgeries. 4. The prognosis for complete recovery is excellent.

4 Page: 3 Decision No. 1322/11 (iv) The worker's testimony [13] The worker testified that he had worked with the accident employer in residential construction as a carpenter/ handyman, beginning in He testified that for the first three years his work involved mainly basement repairs and he described the tasks required in detail. The inside basement repair work required the use of heavy hammer drills, grease machines and caulking guns: a single crack would require between 15 and 30 drill holes; the holes would be then greased and filled with silicone. He stated that the power tools used in this job required repetitive forceful gripping as well as producing significant vibration. Outside basement repair work required digging four-foot-deep trenches by hand shovel. The worker stated that he also did drywall repair, which required the use of skill saws, reciprocating saws, hammers and power drills. Flooring repair was also part of his job, which also required the use of hammers and vibrating power tools. [14] The worker stated that after doing this job for more than two years, he developed the first symptoms of carpal tunnel syndrome and received first medical treatment March 4, 2004 for night numbness and tingling in his hands: but the condition was not definitely diagnosed until he was referred to the neurologist, Dr. Temple, in July [15] The worker stated that he had been laid off by the accident employer around March 2009, and quickly obtained employment as a forming carpenter, doing high-rise residential work until his bilateral carpal tunnel surgery in December 2009 and January He stated that following the surgery he returned to work in July 2010 and continues to work as a carpenter/handyman. The worker stated that he has no medical restrictions following his carpal tunnel syndrome but continues to have trigger finger in the right hand. (v) Submissions of the worker's representative [16] Mr. Schirru reviewed the documents attached in Case Record Addendum #3. These included a 2007 study by the National Institute for Occupational Safety and Health (NIOSH) entitled Ergonomics for Construction Workers, which identified work-related musculoskeletal disorders caused by job activities and conditions related to construction work. Carpal tunnel syndrome was identified as one of a number of injuries and disorders resulting from the risk factors of forceful grip on tools, wrist bending, rapid and repetitive wrist movement and vibrating tools. [17] Mr. Schirru referred to a second document, published by the WSIB in January 2005, entitled Adjudicator Advice Initial Entitlement (Disablement). The document noted that because of the fact that workers have varied levels of understanding with respect to causation, delays in reporting and seeking medical attention must be carefully weighed before reaching any conclusions. [18] The third document cited was a publication entitled Construction MultiTrades Health and Safety Manual by the Construction Safety Association of Ontario, This document advised that: Chronic injuries must also be guarded against: such as musculoskeletal conditions like carpal tunnel syndrome or Raynaud's syndrome-white finger disease. These conditions

5 Page: 4 Decision No. 1322/11 can develop more subtly and prevention can involve awareness of variety of precautions including tool selection, work schedule and work practices. [19] Mr. Schirru reviewed Tribunal jurisprudence with respect to awards of entitlement in carpal tunnel syndrome cases, as well as the principle of significant contributing factor. He concluded that the worker's job duties were entirely compatible with the development of a bilateral carpal tunnel condition. Finally, he cited the medical reports from Drs. Sum and Izukawa stated that the worker's job duties were a causative factor in the development of his carpal tunnel syndrome. [20] He concluded that initial entitlement was in order based on the evidence. (vi) Law and policy [21] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect and applies to this case. [22] Provisions for Payments for Loss of Earnings are set out in section 43: 43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1). [23] Compensation for non-economic loss is set out in section 46: 46. (1) If a worker s injury results in permanent impairment, the worker is entitled to compensation under this section for his or her non-economic loss. 1997, c. 16, Sched. A, s. 46 (1). [24] 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 [25] The Supreme Court of Canada reviewed the principles of causation in Athey v. Leonati, [1996] 3 S.C.R Major J., speaking for a unanimous Court, provides an overview of the authorities and sets out the following general causation principles: Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R (H.L.). The general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441.

6 Page: 5 Decision No. 1322/11 The "but for" test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury: Myers v. Peel County Board of Education; [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff'd [1989] 2 S.C.R In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is "essentially a practical question of fact which can best be answered by ordinary common sense". Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a "fire ignited in a wastepaper basket is... caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth". As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. [26] The Tribunal s decisions have recognized the common law principles of causation and adapted them to the workers compensation/workplace insurance context. 1 It is generally accepted that the Tribunal s significant contribution test is essentially the same as the material contribution test applied at common law. 2 [27] In Board Operational Policy Manual (OPM) Document No , Definition of an Accident, "Accident" is defined as: a wilful and intentional act, but not an act of the worker a chance event resulting from a physical or natural cause a disablement arising out of and in the course of employment. [28] The distinction between chance event and disablement receives extended discussion in an "Interpretation Bulletin" from the WCB Policy and Program Development Department dated October 19, The discussion of this distinction is as follows: What is the importance of the distinction between chance event' and 'disablement'? 1 Decision No. 549/95I2 (July 23, 1998) discusses the common law principles and how they apply in this context. 2 See for example, Decision Nos. 832/91 (October 7, 1992), Decision Nos. 228/02R (January 20, 2004) and 1645/99R (October 31, 2000). The use of the word significant is not intended to connote a higher standard for establishing causation in workplace injury cases.

7 Page: 6 Decision No. 1322/11 Whether a worker is found to have suffered a personal injury by accident either by way of a chance event or by disablement, she is entitled to benefits. - In both cases, the issue of causation is the same; the injury must result from the work rather than from some other non-work-related cause in order to be compensable. The kind of evidence to be adduced, the balance of probabilities standard to be applied and the benefit of doubt to be accorded to the worker when the evidence is evenly balanced, all remain identical in both cases. - The only difference is whether it is the worker or the employer who must bear the burden of proving or disproving the work-relatedness of the injury, and who has the benefit of the presumption in s. 3(3). - If the accident is a chance event, s. 3(3) of the Act provides a presumption: if the worker shows that the accident arose out of the employment, it is presumed that it also arose in the course of employment, and vice versa. In such cases, entitlement is in order unless the employer rebuts the presumption by showing that the accident did not arise out of or in the course of the employment. - If the accident is a disablement arising out of and in the course of employment, the presumption clause does not apply, and the worker must show evidence that demonstrates that the disablement both arose out of and in the course of the employment. [29] In January 2005, the Board issued a document entitled Adjudicative Advice Initial Entitlement (Disablement) which contained the following statements: In the late 1980s, arising from a Tribunal Ruling (Decision 72), the WSIB revisited the approach to adjudicating "disablement" to ensure decision makers were not being unnecessarily restrictive in their rulings. At that point, a renewed understanding was communicated that conditions emerging gradually over time after performing normal duties could be considered as long as the causation test was met. The fact that a worker cannot immediately associate the problem/pain with the work activity or that the activity is not different, is not in itself a reason to doubt the validity of the claim. Some conditions that emerge over time as a result of normal work activity do not always reach a level of discomfort to require medical treatment or reporting until well after the work tasks were first commenced. While some alteration/change in activity can assist in identifying an association between the activity and onset, the fact there is no change but simply activities over time that can reasonably give rise to the problem is sufficient to consider entitlement. Workers have a varied level of understanding with respect to causation matters and often rely, quite understandably, on their treating physicians and sometimes their employers to guide them in this regard. Therefore delays in reporting and seeking medical attention must be carefully weighed before reaching any conclusions. This does not negate the significance of the temporal element, as it is possible to have discomfort close to the activity but not immediately associated with the activity. In weighing the evidence and determining the potential contribution of the work, it is important to ensure the details concerning any pre-existing or coexisting conditions be considered. Should a worker have pre-existing condition that renders them more susceptible to injury, it is important to then consider if the work activity may be a significant factor in triggering the impairment. In these cases entitlement must also be considered on the basis that the activity "aggravated" the underlying condition to the point it now presents a disabling feature.

8 Page: 7 Decision No. 1322/11 [30] Board OPM Document No , states the definition of disablement includes a condition that emerges gradually over time, and an unexpected result of working duties. (vii) The Panel s conclusions [31] The worker in this case is claiming initial entitlement for bilateral carpal tunnel syndrome arising out of and in the course of his employment as a construction carpenter/handyman on a disablement basis. [32] The Panel finds the worker to be a credible witness's testimony was given in a straightforward manner without exaggeration and which was corroborated by the documentary evidence in the Case Record. [33] The Panel accepts the worker's testimony with respect to the nature of his duties with the accident employer beginning in These duties required the regular daily use of heavy power tools, including hammer drills, grease guns, caulking guns and power saws associated with repetitive gripping and significant vibration. The worker also used a variety of hand tools including shovels, hammers and saws requiring repetitive use of the hands and wrists. It is an accepted fact, recognized in the documents cited above from NIOSH and the Ontario Construction Safety Association, that workers exposed to repetitive, gripping-hand work involving vibratory power tools experience a risk of contracting musculoskeletal injuries such as carpal tunnel syndrome. [34] In our view, the worker s job duties were entirely compatible with the development of a bilateral carpal tunnel condition. [35] While the worker was not diagnosed with bilateral carpal tunnel syndrome until he was referred to a neurologist in July 2009, he did report his symptoms of bilateral night numbness and tingling to his family physician in March It is obvious that the symptoms recorded in 2004 were an early onset of his carpal tunnel condition. The condition subsequently required bilateral decompression surgery which appears to have been successful. The worker's two treating physicians have stated in their reports that the worker's work duties were a causative factor in the development of his carpal tunnel syndrome. The Board s Adjudicative Guideline on Disablement cited above makes it clear that delays in reporting a disablement injury is not grounds for disentitlement. [36] The worker's file was never referred to a Board Medical Consultant for advice and there is no evidence before us to contradict the evidence of the worker's treating physicians, both of whom support a causal relationship between the worker s CTS and his job duties. [37] Therefore, on the basis of the evidence before us, including the worker's testimony which we accept and the reports of the worker s treating physicians which we consider to be determinative, we find that the worker's job duties as a carpenter/handyman subsequent to 2002 were a significant contributing factor in the development of his bilateral carpal tunnel syndrome. [38] The worker has initial entitlement for carpal tunnel syndrome arising out of and in the course of employment. The nature and quantum of compensation benefits to which the worker is entitled is remitted to the Board for determination.

9 Page: 8 Decision No. 1322/11 DISPOSITION [39] The appeal is allowed. [40] The worker has initial entitlement for carpal tunnel syndrome arising out of and in the course of employment with the accident employer. The nature and quantum of compensation benefits to which the worker is entitled is remitted to the Board for determination. DATED: August 5, 2011 SIGNED: R. McClellan, A. Lust, J. A. Crocker