Worker v. Employer, 2024 CanLII 140468

20250011

REPRESENTED by:

TELECONFERENCE – DECEMBER 11, 2024

HEARD by:

DATED:

DECEMBER 20, 2024

ISSUES

The worker is objecting to the following decisions, made by the Eligibility Adjudicator (EA) on July 10, 2023:

The determination that the worker did not meet the time limit to claim benefits, and the denial of an extension to the time limit.
The denial of initial entitlement to benefits for bilateral carpal tunnel syndrome (CTS).

Note that the EA also established June 7, 2022 as the date of injury in this claim. I must also address this issue in order to properly address the time limit for claiming benefits. The worker representative was in agreement with this.

BACKGROUND

This carpenter submitted a claim for benefits for symptoms of numbness and tingling in their hands and fingers. A claim was registered, and the worker underwent an assessment for hand-arm vibration syndrome (HAVS) on November 22, 2022. While the clinical testing for HAVS was negative, the worker was found to have mild bilateral CTS. It was recommended that a new claim be registered and entitlement to benefits for CTS be considered.

A letter was sent to the worker on December 12, 2022 notifying them that a new claim for CTS was registered. A Worker’s Report of Injury/Disease (Form 6) was sent to the worker on December 20, 2022. The Form 6 was submitted by the worker on June 16, 2023. The worker related their condition to the physical demands of their job duties working as a carpenter for many years. They said that they had last worked in 2021.

As explained in correspondence dated July 10, 2023, the EA set the date of injury in this claim as June 7, 2022 as this was when the worker indicated that they had sought medical attention for their

condition. The EA declared that the worker did not meet the time limit for making a claim for benefits and

declined granting an extension to this. The EA also said that they could not determine that the worker was injured in a workplace accident as they had not obtained information from the worker.

Note that the accident employer identified by the EA contested this classification noting that the worker had not worked for them since July 2019.

The decisions were reconsidered and upheld on October 4, 2024.

Worker’s Position

The worker representative argued in part that the WSIB should have been aware that the worker was making a claim for benefits for their bilateral hand and wrist issues. The worker did not miss the time limit for making a claim for benefits by much. The specialist who assessed the worker and diagnosed them with CTS expressed that the worker’s job duties had risk factors for causing this condition.

The worker had been off work for an extended period due to unrelated medical issues prior to the date of injury under this claim. They have not had treatment for CTS and said that surgery was not recommended. When asked what they are seeking under this claim, they said that they just want acknowledgement that the condition is work-related.

AUTHORITY

Workplace Safety and Insurance Act, 1997, Section 13(2) Adjudicative Advice document: Initial Entitlement (Disablement)

Operational Policies

Published

11-01-01 Adjudicative Process

11-01-04 Determining Date of Injury

15-01-03 Workers’ Requirement to Claim and Consent 15-02-01 Definition of an Accident

November 3, 2008

April 9, 2021

October 12, 2004

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Date of Injury

The date of injury in this claim should be November 22, 2022.

WSIB Operational Policy 11-01-04 Determining the Date of Injury states in part that in cases such as this where a worker claims to have developed a disablement that occurs gradually over the time, the date of injury is determined as follows:

In a gradual onset disablement claim, the date of injury is established using the date of first medical attention which led to the diagnosis, or the date of diagnosis, whichever is earlier. An

example of a gradual onset disablement claim is where a worker gradually develops left wrist and hand symptoms from work-related duties and is diagnosed with carpal tunnel syndrome.

I can only consider the available medical evidence in the claim file.

I note that the worker underwent a nerve conduction study on June 14, 2011. This was ordered to investigate cervical spine issues. The test showed evidence of mild right CTS, as well as chronic denervating changes in the cervical spine. There is no medical evidence available in the claim to support that the worker was diagnosed with CTS at that time. Test results do not necessarily mean that the physician would assign the same diagnosis for a person’s symptoms. In addition, there is a gap of over eleven years in the subsequent available medical record. The issue before me is the worker’s claim for benefits for CTS as was diagnosed on November 22, 2022.

There is a medical chart note from June 7, 2022 on file. It appears to be from a telephone consultation with the worker’s family doctor (FD). The worker updated the doctor on several issues. No clinical examination was completed. The worker was referred for x-rays on their lumbar spine and hip, as well as for an assessment for HAVS.

The HAVS assessment took place on November 22, 2022. The worker reported having had intermittent numbness and tingling in their hands and fingers over the previous ten years. On examination, Tinel’s and Phalen’s testing were positive on the right side, and negative on the left. Based on the clinical examination and the testing performed, the worker’s symptoms were not consistent with HAVS. There was evidence to support a diagnosis of mild bilateral CTS, that was very mild on the left side.

Based on the available information, the date of diagnosis for the worker’s CTS was November 22, 2022. While the worker’s doctor referred the worker for the HAVS assessment on June 7, 2022, this was based on a telephone discussion of the worker’s subjective complaints. I do not consider this to be the first medical attention that led to the diagnosis.

Therefore, the date of injury in this claim is November 22, 2022.

Time Limit to Claim

I find that it is reasonable to extend the time limit to claim benefits in this claim. Policy 15-01-03 Workers’ Requirement to Claim and Consent states in part:

As soon as possible after an injury, workers must file a claim for benefits. They must also consent to disclose their functional abilities information, which is provided by the treating health professional.

A claim must be filed within six months of an injury or, in the case of an occupational disease, within six months of the worker learning of the disease. The WSIB may extend the six-month deadline, or waive the dual requirement altogether if in the WSIB's opinion it is just to do so.

If the worker does not file the claim for benefits, or consent to the disclosure of functional abilities information within the six-month deadline, the WSIB does not provide benefits unless, in its opinion, it is just to do so.

One of the ways in which the worker meets the requirement to claim and consent is by signing the Worker’s Report of Injury/Disease (Form 6).

In disablement claims, the policy states that the six-month deadline begins from the date the worker reports the disablement to the employer, health professional or WSIB as work-related.

This worker initially submitted a claim for benefits for HAVS. A claim was registered for the worker, and they were referred for an assessment. As noted above, the HAVS assessment was conducted on November 22, 2022. The worker was found not to have HAVS but was diagnosed with mild bilateral CTS.

The WSIB registered a new claim for benefits for the CTS condition. A letter was sent to the worker regarding the establishment of this claim on December 12, 2022, and a Form 6 was issued to them on December 20, 2022.

The need for a second claim for what to the worker would have been the same condition is an administrative issue. The worker made a claim for benefits for numbness and tingling in their hands and fingers that they attributed to the physical demands of their job duties. When the diagnosis was confirmed as CTS and not HAVS, the WSIB decided that a new claim was required. I do not have carriage of the HAVS claim, but as it was adjudicated, I presume that the worker met the time limit to claim benefits under that claim. The worker testified that they did not really understand what was happening with the claims. I presume that the worker was unclear at the time as to why a new claim for the same injury was required.

The date of injury in the CTS claim is November 22, 2022. The worker submitted the Form 6 on June 16, 2023, within six months of it being issued to them, and just a few weeks beyond six months from the date of injury. Given that they barely missed the time limit to claim, and the administrative issues involved, it is reasonable to extend the time limit to claim in this case.

Initial Entitlement

The worker is not entitled to benefits for bilateral CTS under this claim. Based on their testimony and the claim file evidence, I cannot determine that this condition was caused by a workplace accident or the physical demands of their job duties.

WSIB Operational Policy 11-01-01 Adjudicative Process states in part that workers who sustain a personal injury as a result of an accident arising out of and in the course of their employment are entitled to benefits under the insurance plan. There must be medical compatibility between the diagnosed injury and the accident history.

Policy 15-02-01 Definition of an Accident states that an accident can include a chance event or a disablement that arises out of and in the course of employment. A chance event is “an identifiable unintended event which causes as injury.” A disablement can include “an unexpected result of working duties” or be a condition that occurs gradually over time.

Section 13(2) of the Workplace Safety and Insurance Act (the Act) states:

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.

This presumption applies to “chance event” type accidents. As per the Adjudicative Advice document,

Initial Entitlement (Disablement), the presumption clause of the Act does not apply to disablement-type

accidents. For disablement cases, it must be shown that the worker sustained a personal injury as a result of an accident arising out of and in the course of employment.

As outlined above, this worker was diagnosed with mild bilateral CTS on November 22, 2022. They testified that they had symptoms of numbness and tingling in their hands for many years prior to this. However, they did not seek medical attention. They underwent an EMG in 2011, but this was for cervical issues. They did not receive any treatment for CTS prior to November 22, 2022, or since for that matter.

The worker relates their condition to their time working as a carpenter for various employers. Claim file evidence indicates that from March 2011 to April 2017 the worker did not work at all through the union hall. They testified that they were self-employed during this period, performing home renovation work. From April 2017 to August 2017, they worked 486 hours through the union hall. From May 2018 to December 2018, they worked 775.25 hours. From March 2019 to July 2019, they worked 522 hours.

From June 2020 to November 2020, they only worked 383.5 hours. And in all of 2021, they only worked eight hours. They essentially stopped working after November 2020 due to unrelated health concerns.

Through the union, they stated that they primarily built forms for poured concrete. They said that they frequently had to use tools such as a hammer, electric drills, and impact guns. These caused vibration. The tools could be heavy and required sustained gripping.

The worker said that they never reported their bilateral hand and wrist issues to an employer while they were working.

The worker representative argued in part that Dr. Spilchuk, who assessed the worker for HAVS and diagnosed the mild bilateral CTS, expressed that hand-arm vibration and ergonomic stressors are known risk factors for developing CTS, and suggested that a WSIB claim be established for the worker. The worker’s prognosis for recovery was good. It was recommended that the worker avoid or take precautions while using vibrating tools. They should avoid forceful gripping, twisting, bending and extension of the wrists for six weeks.

I acknowledge that some of the worker’s job tasks could have been risk factors for causing CTS. However, I cannot determine that this worker’s mild bilateral CTS was caused by their job duties. As outlined above, the worker had effectively not performed the job duties in question for the two-year period prior to the diagnosis, having only worked eight hours from November 2020 to November 2022. They did not have exposure to the risk factors in the job, which supports that these were not the cause of their condition. They did not report having bilateral hand issues to their employer while they were working.

They did not seek medical attention for this condition while they were working. They had been avoiding vibratory tools for two years before the diagnosis. All of these factors prevent me from being able to establish that the worker’s bilateral CTS diagnosed in November 2022 was caused by the physical demands of their job duties from when they were working as a carpenter through the union.

Therefore, proof of accident is not established. The worker is not entitled to benefits for bilateral CTS under this claim.

CONCLUSION

The date of injury in this claim is November 22, 2022.
The worker is granted an extension to the time limit to claim benefits.
The worker is not entitled to benefits for bilateral CTS. The objection is allowed-in-part.

DATED DECEMBER 20, 2024

C. Marr

Appeals Resolution Officer Appeals Services Division