Decision #45/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 5, 2003, at the claimant's request. The Panel discussed this appeal on February 5, 2003 and again on April 8, 2003.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
In August 2001, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report problems with both hands, elbows and shoulders which she related to her job functions as a legal assistant/secretary. The claimant described her injuries as follows:"While working at [name] on computer with a keyboard on a desk, no keyboard tray to lower or wrist support. I advised my supervisor at that time for a keyboard tray but was advised no by [name] and if I didn't want to work there that I should quit (other staff were forced to leave if they filed with WCB. Staff were scared to file with WCB.) I have been working at a new position for a year now with a keyboard tray which helps and I have a wrist support. I find that I am having problems with my wrists, arms - my right arm throbbs (sic) so bad that it keeps me from sleeping at night and now this continues all day."In a letter to the family physician dated November 26, 2001, a neurologist outlined the symptoms which the claimant described with respect to her right hand and forearm, left arm, both legs and neck regions. The neurologist indicated that the arm symptoms were likely part of a flexor tendonitis. The claimant had no clinical or electrophysiological evidence of a carpal tunnel syndrome. The leg symptoms were non-descript and there was no evidence of a more diffuse peripheral neuropathy or demyelinating disease. Further tests were recommended.
On June 28, 2001, an adjudicator with the WCB contacted the claimant to gather additional information concerning the onset of her symptoms and details regarding her job duties with her employer. The adjudicator also spoke with the employer to obtain information as to whether or not the claimant reported or complained of a work related injury.
In a letter dated September 14, 2001, primary adjudication informed the claimant that no responsibility would be accepted for her claim. Primary adjudication wrote that when adjudicating claims, the WCB must find a causal connection to the workplace based on the information provided. It was noted that the employer was not aware of any problems during the time that the claimant was employed with them. In addition, the claimant did not seek medical attention until the week of April 2, 2001. Based on these factors, primary adjudication was unable to establish that the claimant suffered a personal injury due to an accident arising out of and in the course of her employment.
On February 18, 2002, the claimant wrote to primary adjudication requesting reconsideration of the above decision. Prior to considering the claimant's appeal, primary adjudication requested additional medical information from the attending physicians and also contacted the claimant's supervisor. Primary adjudication also took into consideration a further letter from the claimant dated August 6, 2002.
In a letter dated August 26, 2002, the claimant was advised by primary adjudication that no change would be made to the previous decision to deny her claim. Primary adjudication referred to reports on file from the claimant's treating physician dated July 15, 2002 along with information that was obtained from the claimant's treating neurologist. Primary adjudication noted that the only diagnosis that it had been provided with in relation to the claimant's arm symptoms was "likely part of a flexor tendonitis."
Primary adjudication also advised the claimant that it was unable to establish that her employer was aware of any problems during the time that she was employed with them and therefore it was unable to establish that she suffered a personal injury. With respect to the claimant's current employer, primary adjudication advised that law firms do not have coverage with the WCB.
On November 15, 2002, Review Office considered the case based on an appeal submission by the claimant dated September 9, 2002. Review Office confirmed that the claim for compensation was not acceptable based on the following rationale:
"There was no evidence the claimant experienced any of the physical problems alleged by the claimant while working for the employer.As the claimant disagreed with Review Office's decision, an oral hearing was requested and later took place on February 5, 2003.
There was no evidence of an injury during the claimant's term with [the employer's name]. The claimant did not see a doctor until she worked for a different employer, and therefore we are unable to determine a diagnosis for the claimant's alleged difficulties during her employment with [the employer's name].
The employer had no knowledge of the claimant's physical complaints.
The claim was filed outside the legislative time requirements for filing a claim and there is no evidence to support that the board would create an injustice by disallowing the claim."
Following the February 5th hearing, the Panel met to discuss the case and it requested additional information prior to discussing the case further. Specifically, the Panel requested additional information from two of the claimant's treating physicians along with a copy of an occupational assessment that was carried out under another claim that had been filed by one of the claimant's co-workers. On March 13, 2003, all interested parties were provided with copies of the additional information that was obtained by the Panel and were asked to provide comment. On April 8, 2003, the Panel met further to discus the case and to render its decision with respect to the issue under appeal.
Reasons
This case involves a worker who has had problems with her arms and wrists, which she alleges was caused by her employment as a legal assistant/secretary. Her application for compensation was denied by the board, which decision was upheld on reconsideration by Review Office. She has appealed that decision to this commission.For her appeal to succeed, the Panel would have to determine that these medical problems were causally related to her employment, specifically in this case, with an employer covered by workers compensation. We were not able to make that determination.
In coming to our decision, we conducted a thorough review of the claims file, as well as holding an oral hearing at which we heard testimony from the claimant. Subsequent to the hearing, we sought further information in respect of the ergonomics of her workplace, as well as further medical information from her treating physicians.
The following findings are relevant to our conclusion:
- The claimant was employed by two different employers during the period in question. Both positions involved a considerable amount of typing.
- She was employed by a government branch from November 1995 to June 1999 on a full-time basis and from August 1999 to August 2000 on a casual basis. This employer is a covered industry within the meaning of the legislation.
- From May 2000 to September 2001, she was employed by a law firm. Initially, this was part-time, overlapping with the casual work for the government. Later, she worked full-time. This employer is not a covered industry and had not opted for voluntary coverage.
- During the latter part of this period, she also attended university, carrying up to a 60% load.
- She alleges that she began to experience pains in her wrists and hands in 1998. She testified that these pains increased by February 2001. By April 2001, they had become - in her words - so bad that she sought medical attention -- for the first time.
- This was eleven months after she started to work for the law firm and eight months after she last worked for the government.
- In a letter dated November 26, 2001, a neurologist who examined her wrote that: "Nerve conduction studies carried out the same day failed to reveal any evidence of carpal tunnel syndrome." It was his opinion that her symptoms were likely due to flexor tendonitis.
- A physician at the walk-in clinic visited by the claimant on a number of occasions reported that she was not treated for any wrist or arm problems between 1998 and April 2001.
- On April 5, 2001, she first visited the clinic reporting arm problems.
- Her family physician reported that during visits, from September 1998 to November 2002, she did not treat her for right arm or wrist problems. She was aware that the claimant had visited a clinic for this problem.
We were unable to determine that such an injury occurred. Of her two employers, only the first, the government branch, was an industry within the scope of the Act. However, there is no evidence on file which would substantiate her claim that the injury she incurred happened while in this employ. She had no time loss, no diagnosis of carpal tunnel syndrome (CTS), nor did she undergo any medical treatment for CTS while at this job.
This is supported by the medical evidence. Both of her treating physicians reported that they had not treated her for CTS symptoms, while she was employed by the government. The specialist who conducted nerve conduction studies reported that the tests were negative for CTS. This was in November 2001, some fifteen months after she last worked for the government. Furthermore, she made no report of any problems to this employer.
It is our conclusion that her arm and wrist problems arose while she was employed by the law firm, a non-covered employer. Thus, her injury falls outside of the compensation scheme. We would note that it is open to her to consider other legal remedies.
In her presentation to the Panel, the claimant argued that the ergonomics of her workstations with the government were very bad. In her opinion, these workstations and the general working conditions were very conducive to the development of carpal tunnel syndrome. To this end, she asked that we review a workplace assessment, conducted by the board, in respect of a claim for compensation by one of her co-workers. We did request and consider that report, which, in that case, found that there was a causal relationship between that worker's injury and her job tasks.
While this did substantiate the claimant's argument that her working conditions were not ideal, there was an important difference in that the claimant in the other case had had her condition diagnosed while still in the government employ.
The claimant also raised a number of labour relations issues, which she alleged not only played a role in the development of her arm and wrist problems, but also mitigated against her (and some co-workers) exercising their rights to apply for compensation. We were not able to find any relevance between these matters and the acceptability of the claim. For the most part, these matters dealt with issues beyond the jurisdiction of this commission.
Finally, we would note that, while the claim was not filed within the statutorily required time frame, this fact played no part in our consideration and conclusion.
Accordingly, the appeal is dismissed.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of May, 2003