1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1525/07 BEFORE: HEARING: M. Crystal: Vice-Chair June 29, 2007 at Toronto Oral hearing DATE OF DECISION: July 3, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1695 DECISION(S) UNDER APPEAL: WSIB ARO decision dated December 16, 2005 APPEARANCES: For the worker: For the employer: Mr. Jim Muirhead, United Steelworkers Ms. Cynthia Hellsten, Consultant 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. 1525/07 REASONS (i) Introduction  This appeal was heard on June 29, 2007, in Toronto.  The employer and the worker both appeal the decision of Appeals Resolution Officer (ARO) D. McParland dated December 16, That decision concluded that: i) The worker had initial entitlement for bilateral carpal tunnel syndrome (CTS); and ii) The employer was entitled to 50% Second Injury and Enhancement Fund (SIEF) cost relief.  The employer appeals the decision to allow initial entitlement for bilateral CTS. The worker appeals the decision to allow 50% SIEF cost relief.  The employer was represented by Ms. Cynthia Hellsten, consultant. The worker was represented by Mr. Jim Muirhead, United Steelworkers. The worker appeared and testified at the hearing. The employer s health and safety manager also testified at the hearing. Submissions were made by the Ms. Hellsten and by Mr. Muirhead. (ii) The issues on appeal  The issues to be determined in this appeal are: i) Whether the worker has initial entitlement for bilateral CTS; and ii) Whether the employer is entitled to 50% SIEF cost relief. (iii) The evidence  The worker has alleged that he suffered a workplace injury on a gradual onset or disablement basis as a result of the work performed for the accident employer, a fabricator and distributor of steel sheeting. January 21, 2004 was established as the accident date for the injury.  The worker testified at the appeal hearing that he had been employed as a labourer by the accident employer for 31 years. He testified that one of the main functions that he performed for the employer was that of a bander. The worker testified that, in this work, he affixed metal bands around bundles of sheet metal. He stated that the sheets of metal could be as small as 3 feet by 2 feet, or as large as 12 feet by 5 feet. He also noted that the sheets of steel could be very thin, or ¼ inch thick. The sheets would be stacked on a pallet, and the job of the bander was to loop metal bands around the bundle of sheets, tighten the bands and finally, to clip or crimp the band so that it would remain in place, holding the bundle of sheets securely.  The worker testified that for about the first ten years of his employment with the accident employer, he did the job of banding using two manual machines. One of the machines tightened the band, and the other machine affixed a clip to the tightened band, to hold the tightened band securely in place. He described the task by stating that he would loop the metal banding, which was dispensed from a roll, around the bundle of sheet metal, apply a clip to the loop, threading the loose end of the band through the clip, put a bend the band by hand, so that the clip remained
3 Page: 2 Decision No. 1525/07 in place, and then apply a hand tool, which he referred to as the tension machine to the band. The tension machine was described as having two handles. To tighten the band, one of the handles would be held down against the bundle, while with the other hand, the worker would move the other hand up and down in an arc. The machine used a ratchet mechanism to tighten the band. The worker testified that it usually took about ten repetitions to create the necessary tension in the band, and that about 30 lbs. of pressure was required to create this tension.  The worker testified that when a band was sufficiently tight, they would apply another manual tool, which the worker referred to as the squeezer, which closed and tightened the clip that had been previously placed on the band. The worker testified that the squeezer was a scissors-like apparatus, which was placed over the clip, squeezing the clip closed to keep the tightened band in place. He stated that one or two repetitions were usually required to squeeze the clip closed. He stated that there were two types of squeezers. One type was used on top of the bundle and downward pressure could be applied to close the clip. The other type was used when the type of order required that a clip be affixed to the side of a bundle. If this was required, a tool was used which was more in the nature of a pliers, and two hands were used to squeeze the handles towards one another. The worker testified that these squeezer tools, which were used to close the clips, also required about 30 lbs. of pressure.  The worker testified that after the clip was tightly in place, a movement of the tension machine would break the band. This full procedure, as described above, would be repeated for every band.  The worker testified that sometime in the late 1980s or early 1990s, a single tool was used to tighten and close bundles, and that this tool crimped the metal band so that it would be held in place without the use of clip, but that a similar number of repetitive movements were required with the newer tool, and that the crimping mechanism had been assessed as requiring about 26 lbs. of pressure.  The worker testified that an automatic banding tool, the use of which did not require significant force, subsequently became available for use, but that he never used the automatic tool until after he was diagnosed with CTS in early  The worker testified that each bundle would require three or four bands to be applied, and that during a shift, 20 to 30 bundles would be processed. The employer s health and safety manager also testified at the appeal hearing. He testified that usually only bundles would be processed in a day, but that it would not be extremely unusual for 20 bands to be processed. He stated that applying a single band would take about 30 seconds, and that the amount of time that a bander would actually be applying bands to bundles would be less than one hour per day, and sometimes be no more than about 20 minutes per day. He stated that while waiting between bundles, workers employed as banders would clean up the area, help to prepare bundles, or perform whatever tasks they could to help out at the worksite.  The employer s health and safety manager also stated that he recalled seeing the worker use an automatic banding tool on at least one occasion, although he could not provide details as to the timing or circumstances of the occasion.
4 Page: 3 Decision No. 1525/07  The worker testified that, over the years, while performing the job of bander, he aspired to the job of machine operator. He considered the job of machine operator to be a better job than that of bander because it required less physical effort and was more remunerative. In order to obtain that job, he performed the job of helper and spare, from which he might be able to progress to machine operator. He testified that in 1986 he performed the job of shear helper. He stated that this work required some lifting and gripping of metal sheets, which could weigh up to 100 lbs. This work mostly required the positioning of sheet metal so that it could be cut to size. It did not require the same type repetitive gripping which was employed by a bander. He also testified that beginning in about the early 1990s, until about 2000 he was a spare machine operator, and that in this type of position he filled in for other machine operators or helpers as required, and that banding only took up about 60% of his working duties during this period. The worker testified that between 2000 and 2005 he resumed the position of bander.  The case materials included correspondence addressed to the Board, dated February 24, 2004, prepared by the accident employer, which set out the worker s work assignments between January 2003 and January 2004, when he was diagnosed with CTS. The document indicated that between January and July 2004, the worker was off work due to a non-compensable condition, that he worked as a bander for four hours per day for one week in July 2003, and that he went on vacation until mid August After returning to work, following his vacation, he worked as bander for about one week, and then was a bander and helper for a few more weeks. He did the work of a bander from early September 2003 to November He then worked as helper and bander for about two weeks in early December, and as a helper for the rest of the year. He worked as a bander from January 5, 2004 to January 19, 2004, after which his accident claim for CTS was established.  The worker testified that he first began to experience pain in is hands in or about October 2003, when he first saw his family physician, Dr. O. Nicol, about the problem. He stated that the problem became worse in January 2004 and that he returned to Dr. Nicol for treatment at that time. Dr. Nicol prepared a Health Professional s First Report, dated January 26, 2004, on the worker s condition. The report stated that the worker had pain and numbness primarily in the right hand, with a distribution associated with the median nerve. A diagnosis was provided: bilateral carpal tunnel syndrome, right worse than left. The report stated that the worker had experienced gradual onset of disabling pain and weakness to right hand over 3 month period until on Jan 22/04 was unable to use hand because of weakness. Left hand also painful and weak..  The worker was referred to Dr. Bryan Temple, neurologist, who saw the worker on February 26, 2004, and prepared a report dated March 24, 2004 on the worker s condition. The report stated that the worker had had pain in the wrist since October 2003 and this awakened him from sleep every night. The pain was brought on by use of his hands at work. The report also noted that the worker had had a left ankle fusion in the past, a partial thyroidectomy for benign disease, type 2 diabetes, hypertension and hypercholesterolemia. He reported smoking half a package of cigarettes per day. The report concluded by stating: CLINICAL IMPRESSION The patient s history is suggestive of carpal tunnel syndrome and there his examination findings and electrophysiologic studies are consistent with this diagnosis This likely
5 Page: 4 Decision No. 1525/07 directly relates to his work activities as a bander in a steel factory with repetitive use of the hands. Given the severity of the electrophysiologic changes, I have referred him to Dr. Duncan for an opinion regarding a staged bilateral carpal tunnel release. The patient also has reduced flexes in lower extremities with mild sensory changes over the soles of the feet consistent with a mild diabetic polyneuropathy.  The worker was seen by Dr. E. G. Duncan, specialist in neurological surgery, and Dr. Duncan prepared a report on the worker s condition dated April 27, The report noted the worker s history of increasing hand pain and weakness. It stated in part: OPINION Clinically and electrophysiologically this patient has moderate to severe bilateral carpal tunnel syndrome. Interestingly, he is more symptomatic on the right side with more significant electrophysiologic changes on the left Overall I suggested an 80% probability of symptomatic improvement with decompressive surgery. However as discussed with him today improvement may be compromised by underlying diabetes. After discussion, [the worker] has elected to proceed to decompression of his right, the more symptomatic hand, which will be arranged on an outpatient basis in the Surgical Clinic.  At the request of his representative at the time, the worker was seen by Dr. Noel Kerin, physician with Occupational Health Clinics for Ontario Workers Inc. (OHCOW). His report, dated July 7, 2004, stated in part: OPINION/DISCUSSION [The worker] gives a clear history of heavy manual labour spending over a quarter century [sic]. The cumulative trauma sustained by heavy force, repetition, awkward posture and some vibratory tool usage has produced a carpal tunnel syndrome bilaterally NIOSH [National Institute for Occupational Health and Safety] in 1997 review of scientific literature with respect to RSI [repetitive strain injury] /carpal tunnel syndrome and heavy manual labour suggests that there is a strong association between heavy manual labour and carpal tunnel syndrome.  The report went on to note that the Board had denied the worker entitlement to CTS, indicating that the worker had only processed about bundles per day rather than the bundles per day reported by the worker. The Board had also taken into account the fact the worker would have had rest periods, and Dr. Kerin did not consider that to be a valid reason to deny entitlement in the worker s circumstances. He also indicated that the worker used both arms in his work as a bander and that accordingly, entitlement on a bilateral basis was appropriate.  A Board Ergonomist visited the employer s worksite on November 15, 2004, and prepared a report, dated November 30, 2004, on his analysis of the worker s job. The report provided a summary, which stated: 1.0 SUMMARY 1.1 Purpose
6 Page: 5 Decision No. 1525/07 To provide an opinion on whether the worker's past job demands as related to the reviewed workstations contained any significant risk factors that could serve in the development of [the worker s] reported bilateral wrist injuries. 1.2 Findings The bander position in bay #3 was the chief workstation that the worker was assigned to during the period in question (July 2003 January 2004). At this station the worker would average between 15 to 17 bundles per day, in which he would be required to band up and package in order to prepare it for shipping [sic]. This process contained a number of repeated gripping tasks that would be considered significant for this type of injury. In addition, a manual banding tool (that was used prior to the period in question) was used repeatedly by the worker and was found to require large amounts of hand and grip force in order to operate it. Given the demonstrated hand and wrist postures and forces used by the worker as well as the amount of extra hand force required when performing the job with the manual banding tool, the risk factors for the chronic development of this type of hand/wrist injury would be considered present and relevant to the job activities performed. 1.3 Conclusion It is the opinion of this ergonomist that the positions reviewed entitled right CTL banding position #3 and splitter numbers 1 and 2 did contain significant risk factors that could have led to the development of a bilateral hand/wrist injury  At the appeal hearing, the employer s health and safety manager stated that he did not feel that the employer had appropriate input during the visit by the Board s Ergonomist. The case materials included correspondence, dated February 2, 2005, from the employer to the Board which noted that it did not consider the statement in the ergonomist s report, that the worker processed bundles per day, to be accurate. The correspondence also noted that during the period of his employment with the accident employer, the worker had performed several other duties, apart from the job of bander, and that the Board did not appear to properly take this into account. The correspondence also pointed out that the production line where the worker had been employed for most of 2003 and 2004 was designated for persons who required modified work (i.e., the worker was recovering from a non-compensable ankle injury), and that the rate of production on that line was less busy than other lines.  A progress report provided by Dr. Nicol, dated April 15, 2005, provided a diagnosis of bilateral CTS. The report indicated that worker s Type II diabetes could be a factor delaying his healing from surgery.  Dr. Nicol also completed a Functional Abilities Form for Timely Return to Work (FAF), dated May 5, 2005, which indicated that the worker was recovering from bilateral wrist surgery, that his grip strength was approximately 75% of normal and that his condition was likely to remain unchanged from this indefinitely. (iv) Applicable law and policy  The workplace accident which is the subject of this appeal occurred on a gradual onset or disablement and January 21, 2004 was established as the accident date. Accordingly, the worker s entitlement to benefits in this appeal is governed by the Workplace Safety and Insurance Act, 1997.
7 Page: 6 Decision No. 1525/07 (v) Analysis  The case materials included a Discussion Paper, dated February 2000, revised in May 2001, which was prepared by Dr. Brent Graham, Head, University Health Network and University of Toronto Hand Program, on the subject of Carpal Tunnel Syndrome. The paper states in part: While it is possible that different work activities may expose workers to a variable risk of developing symptoms of carpal tunnel syndrome, an assessment of the independent effect of the workplace as an etiologic factor is hampered by wide variations in the diagnostic criteria used to identify carpal tunnel syndrome. In fact, there is so much variation in the manner in which carpal tunnel is diagnosed, that comparison between studies of the workers of different industries is difficult and sometimes impossible. These variations also extend beyond studies of the condition and really reflect different concepts of the condition held by doctors and other health professionals who care for patients with these symptoms... Intrinsic abnormalities of the median nerve itself may also act to lower the threshold for symptomatic compression. Pressures within the carpal canal that might not otherwise cause symptoms of carpal tunnel syndrome may do so if the nerve is rendered particularly sensitive to pressure by some other disease or condition. A common example of this is diabetes mellitus, which frequently affects peripheral nerve function. Peripheral nerves, including the median nerve, are a target of diabetes and in individuals with this condition, carpal tunnel syndrome may occur even where the pressure in the carpal canal is insufficient to cause these symptoms in a non-diabetic individual. In this sense, diabetes may be considered a pre-existing condition that predisposes the median nerve to symptoms of compression under circumstances where this might not otherwise occur... Repetitive movements and exacerbation of a pre-existing or intermittently symptomatic state of carpal tunnel syndrome The role of repetitive movements has been alluded to above. The data available on this subject suggests little if any relationship between this type of exposure and carpal tunnel syndrome. The exception would be in instances where the repetitive activity requires both frequent and forceful movements. Guidelines for defining a critical frequency and degree of force can be inferred from these reports. Where there is a pre-existing diagnosis of carpal tunnel syndrome which is claimed to be exacerbated by a work activity, the same issues in establishing causality pertain as in establishing work-relatedness in general. Carpal tunnel syndrome is known to be a condition that is characterized by both exacerbations and remissions and so the effect of modified work, absences from work and ergonomic modifications to the workplace are difficult to measure...  I interpret the Discussion Paper to mean that frequent and forceful repetitive movements of the hands can contribute significantly to CTS. I am satisfied that the tools that the worker used in his work for the accident employer as a bander required sufficient force, such that such force could be a contributing factor to the worker s CTS, if the force was required on a frequent basis. The worker testified that the amount of force required to operate the manual tools that he used over the years was between lbs. of pressure. This appeared to me to be an appropriate amount of force to operate the tools, and there was no evidence to contradict that this amount of force was required. I am satisfied from the evidence that if the worker used automatic tools prior to the onset and diagnosis of his condition, the use of such tools, at such times, was minimal and not significant.
8 Page: 7 Decision No. 1525/07  There was some variance in the evidence between the frequency that such force would need to be exerted in the work of a bander. The employer indicated that the worker would only apply bands to between bundles per day. The worker testified that he regularly applied bands to about twice that number of bundles. The employer also indicated that fewer motions would be required to create the appropriate tension in the band, and that the crimping would be done in one motion. The worker testified that more motions would be required to create the tension in the band, and that the crimping or clipping of the band would often require more than one movement.  I am persuaded, however, by the evidence from Drs. Temple, Nicol and Kerin, and from the Board s ergonomist, that the frequency and force of the motions performed by the worker in his work as a bander contributed significantly to his CTS. In this regard, I find Dr. Temple s view that the worker s CTS was likely work related to be the most persuasive, in that his level of specialized knowledge related to the condition would be greater than the other practitioners involved in the worker s case, and that his opinion would be objective. Dr. Temple apparently did not consider it necessary to quantify the number of bundles that the worker banded in order to provide his opinion. He was apparently satisfied that the work was a significant factor contributing to the condition on the basis of the nature of the work, and given that it was generally repetitive, without reducing the number of repetitions to a precise number. I agree that the work was generally repetitive.  I note that Dr. Kerin provided his view that the work was a contributing factor on the basis of bundles completed per day. The Board s ergonomist reached this conclusion on the basis of bundles per day. Although the employer subsequently objected to the ergonomist s count of bundles per day as inaccurate, at the appeal hearing, the employer s health and safety manager estimated that the worker probably banded bundles per day, and that 20 bundles could be processed on a busy day.  In my view, it is likely that there was significant variation in the number of bundles that the worker would process on any given day. Based on all of the evidence, it is reasonable to conclude that the worker processed, on average, about 15 bundles per day. In my view, this finding does not vary greatly from the information that was used by the different professionals who considered the worker s condition to be work related. The level of variation does not cause me to conclude that the opinions expressing the view that the condition was work related were likely incorrect.  I note that the Discussion Paper stated that the effect of modified work, absences from work and ergonomic modifications to the workplace are difficult to measure Accordingly, I conclude that the worker s job as a bander was a significant factor contributing to his condition, notwithstanding the evidence that the worker was able to take breaks from his work, or that in 2003 he had an extended absence from work.  I find that the worker has initial entitlement for bilateral CTS based primarily on the medical evidence and the evidence provided by the Board s ergonomist. I note that there is no medical or ergonomic evidence which would cause me to conclude that the worker s employment was not a significant factor contributing to his bilateral CTS.
9 Page: 8 Decision No. 1525/07  On the issue of the employer s entitlement to SIEF cost relief, Dr. Temple s report indicated that the worker had reduced reflexes consistent with a mild diabetic neuropathy. I also note that Dr. Duncan s report indicated that the worker s improvement may be compromised by underlying diabetes. Further, Dr. Nicol also indicated in his April 2005 progress report that the worker s diabetes could delay healing, post-surgery. On the basis of this evidence, I am satisfied that the worker s type II diabetes was probably a factor enhancing or prolonging his disability, and that the Board s finding that the employer was entitled to 50% SIEF cost relief was appropriate.
10 Page: 9 Decision No. 1525/07 DISPOSITION  The employer s appeal is denied. The worker s appeal is denied. 1. The worker has initial entitlement for bilateral CTS. 2. The employer is entitled to 50% SIEF relief in relation to the costs of the worker s accident claim. DATED: July 3, 2007 SIGNED: M. Crystal