The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 3, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on October 3, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On April 28, 2000, the claimant filed an application for compensation benefits indicating that her employment activities as an Accounts Receivable Clerk contributed to her right shoulder and arm difficulties that occurred on March 23, 2000. In a letter attached with her application, the claimant provided details of her work activities along with a description of her pain complaints.

The employer's report of injury dated April 27, 2000, noted that the claimant was absent from work between April 18 and 20, 2000. The employer was led to believe that the claimant's absence from work was due to a stomach flu. On April 24th the claimant indicated she had a sore arm and could not perform her regular duties.

A Doctor's First Report dated April 26, 2000, noted that the claimant gave a history of right shoulder soreness/stiffness radiating to the right neck. Subjective complaints were recorded as "repetitive use injury due to constant typing - now unable to lift right arm, unable to type due to right shoulder/neck pain." Objective findings were tenderness over right biceps tendon and right trapezius. The diagnosis rendered was a right biceps and trapezius strain and the claimant was considered totally disabled effective April 17, 2000. A referral was also made for the claimant to attend physiotherapy sessions.

On June 7, 2000, x-rays were taken of the cervical spine. The impression read, "Cervical spasm and mild degenerative change of C7-T1." The impression of right shoulder x-rays was reported as, "Calcific tendinitis."

A WCB medical advisor reviewed the case on June 22, 2000. He commented that the diagnosis appeared to be a cervical strain, possibly right shoulder rotator cuff tendonitis (calcific - chronic type). In the medical advisor's opinion, this did not appear to be consistent with an overuse of the right arm in computer data entry and would appear to be all pre-existing, on a balance of probabilities.

In a WCB letter dated June 30, 2000, the claimant was apprised of the medical advisor's opinion of June 22, 2000. The claimant was informed that it was the opinion of Rehabilitation and Compensation Services that it could not establish that an accident, as defined in the Workers Compensation Act, occurred while she was in the course of her employment.

On September 13, 2000, a submission was received from a worker advisor appealing the above decision. The worker advisor made reference to the opinion expressed by the attending physician in a report dated September 6, 2000. The attending physician noted that the claimant had no prior problems with her arm and shoulder. He did not feel that the finding of a degenerative osteophyte was functionally significant. He believed that the claimant's neck and shoulder symptoms were due to her work related activities.

On September 19, 2000, the case was again reviewed by a WCB medical advisor in view of the opinion expressed by the attending physician. The medical advisor noted that the claimant's described work duties would not seem to be the type capable of causing the problems reported. The fact that the claimant had shoulder and neck pain and that she worked was not enough to convince him that they were work related. There had been no method of injury reported and her work duties include keyboarding and the use of a calculator.

Based on the medical advisor's opinion, the worker advisor was written on September 22, 2000, and was advised that no change would be made to the WCB's decision of September 13, 2000. The case was forwarded to Review Office for further consideration.

Prior to considering the appeal, Review Office made arrangements to have a worksite assessment (i.e. a task and ergonomic assessment of the claimant's work area and confirm the job description with the accident employer) carried out by a WCB rehabilitation specialist. Following this assessment, Review Office sought the opinion of a WCB orthopaedic consultant on January 9, 2001.

In a January 12, 2001 decision, Review Office determined that the claim was not acceptable and was of the opinion that the evidence did not support a relationship between the claimant's symptoms and an accident occurring at work. Review Office based its decision on the following comments/opinion expressed by the WCB orthopaedic consultant on January 9, 2001:

• the diagnosis of cervical strain and right shoulder rotator cuff tendonitis was not consistent with overuse of the claimant's right arm in computer data entry.
• the WCB orthopaedic consultant agreed with the attending physician that the degenerative changes in the lower cervical spine was not pertinent to her problem. The consultant, however, was of the opinion that the claimant's symptoms were related to her pre-existing shoulder condition, of calcific teondonitis of the rotator cuff. This pre-existing condition was the cause of the claimant's ongoing symptoms and not her job duties. The claimant's job duties would not have aggravated or enhanced her pre-existing condition.

On May 3, 2001, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

This case involves a worker employed as an accounting clerk who suffered pains in her right arm, shoulder and neck. She attributed this to her work and filed a claim, which was not accepted. An appeal to the Review Office for reconsideration was unsuccessful. She appealed the latter decision to this commission.

The issue before the Panel was claim acceptance.

For her appeal to be successful, the Panel would have to determine that her injuries arose out of and in the course of her employment, as required by section 4(1) of The Workers Compensation Act.

We have determined that her injuries were causally related to her employment.

We found especially persuasive two factors in this case. One is the fact that she showed none of the signs and symptoms of her ailment prior to - and since - working in this particular situation. The second was the workplace assessment conducted by the WCB.

The claimant began working for the accident employer in the fall of 1999. About six months into the job, she began to notice pains in the affected area. About three weeks later, the pain had progressed to the point that her doctor instructed her to remain off work. Ultimately, she remained off work for about four months, at which time she returned to work for a different employer. During that time, her injuries healed. She has had no return of the symptoms, since then.

As part of the management of this case, a WCB Rehabilitation Specialist visited the claimant's worksite. He concluded "the claimant was exposed to inappropriate ergonomics in order to carry out this job." Noting that she spent about 80% of her day at the work station, he added:

• "Due to the locations of the monitor, neck was rotated and slightly flexed for a good portion of her work day."
• "Phone use and mouse work involved an extended reach with the right arm and shoulder while sustaining the phone between her R neck and shoulder." He also noted that she averaged one to two phone calls every ten minutes.
• "Chair provides no forearm support."

In her testimony before the Panel, the claimant told us that, in her most recent position, the workplace ergonomics were very good, and included a chair with good support and a headset telephone. She has experienced no physical problems working at this station.

We also took note of the x-ray results, which showed that she had mild degenerative change at the C7-T1 level of her spine, as well as calcific tendinitis in her right shoulder. Based on this evidence, a board medical advisor expressed the opinion that her problems were a result of this pre-existing condition. This opinion formed the basis of the denial of her claim.

We have come to a different conclusion. The fact that her symptoms occurred only while she worked for the accident employer would indicate some culpability on her employment. When we considered the report on her workstation, we concluded that - on a balance of probabilities - her employment, if not being the principal cause of her injuries, at the very least, aggravated her pre-existing condition.

For these reasons, we find the claim to be acceptable.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of October, 2001