Decision #142/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on October 9, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 9, 2003.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
In November 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to file a claim for neck and right shoulder difficulties that she related to her employment activities which included data entry work and using a computer mouse for 4-6 hours per day. Between November 1999 and June 2001, the claimant indicated that she had put in a lot of overtime because of a new computer system and eventually her neck and shoulder started to bother her. The claimant outlined a number of treatment modalities that she had received which included massage, chiropractic visits, physiotherapy treatments, etc.The accident employer provided the WCB with information concerning an interview that took place on December 2, 2002 between the claimant and the employer. This information confirmed that the claimant worked full time as a computer operator and that she had worked a substantial amount of overtime between November 1999 and June 2001 whereby her right shoulder and neck became symptomatic. It was noted that an ergonomic assessment had been carried out by WCB staff on a different claim, and that all computer staff, including the claimant, had their computer screens raised and were given a wrist rest pad along with mouse pads. Prior to this, the computer department did not use a Windows program and did not use a cursor or a mouse. All computer staff were provided with new ergonomically designed work chairs and the claimant recently received a head set for use during telephone conversations. A new keyboard had also been ordered with a built-in mouse, thereby reducing the strain on the shoulder, arm and neck.
With respect to the reporting of the accident, the employer indicated that there were no witnesses to the accident as it occurred over a period of time and there was no one thing that the claimant did that caused a sudden onset of pain. The claimant reported the accident to the secretary-treasurer and office manager on November 25, 2002.
On December 17, 2002, a WCB adjudicator contacted the claimant to gather further details regarding the onset of her symptoms, the job duties that she performed and information concerning her outside activities.
File information contained x-rays reports and CT scan results of the cervical spine. On November 22, 2002, a Doctor's First Report diagnosed the claimant with myofascial neck and upper back pain following an examination on August 15, 2002. On December 2, 2002, the treating chiropractor made a diagnosis of cervical thoracic strain/sprain.
A physiotherapy report was received dated January 28, 2003, which contained details regarding the claimant's entrance complaints and examination findings commencing in early July 2002 through to January 10, 2003. The physiotherapist concluded, based on history and objective findings, that the claimant's condition had been triggered and exacerbated by sustained postures and stress at work.
On February 3, 2003, primary adjudication referred the case to a WCB medical advisor to respond to questions concerning probable diagnosis, whether or not the diagnosis was related to the claimant's work activities and to identify pre-existing conditions, if any, and how the pre-existing condition was impacting on the claimant's current clinical condition. The medical advisor's response to this memo is dated February 4, 2003.
In a decision dated February 5, 2003, primary adjudication notified the claimant that her claim for compensation was denied. The adjudicator made reference to the opinion expressed by the WCB medical advisor that the claimant's diagnosis was associated degenerative disease of the cervical spine with possible myofascial pain. He suspected that the degenerative disease of the cervical spine was the major factor in her continuing myofascial symptomatology. The medical advisor opined that the postural conditions at work may have been an aggravating factor but after the ergonomic improvements were made, ongoing problems would not be expected to continue. It was felt that some of the claimant's outside activities, i.e. Tai-bo, yoga, water craft, boating, etc. could be the causation for her physical problems. Primary adjudication summarized that it was unable to establish that the claimant's symptoms were related to her occupational duties. On February 21, 2003, the claimant's union representative appealed this decision and the case was forwarded to Review Office.
On May 9, 2003, Review Office determined that the claim was not acceptable as it was unable to relate the claimant's neck problems to her employment activities. Review Office placed significant weight on the file evidence which included the claimant's reporting of the accident to her employer, the onset of her symptoms, the x-ray results pertaining to the cervical spine, the reports by the physiotherapist and the opinion expressed by a WCB medical advisor. Review Office summarized as follows:
- there was no specific accident or incident nor was there any report of neck problems until November 25, 2002; and
- the claimant did not attend for medical treatment until May 9, 2002 when she initially attended the chiropractor.
Reasons
The Appeal Panel is unanimously of the opinion that this claim is acceptable. This conclusion is based upon the evidence given by the claimant at the hearing of this mater together with the information on the claimant's file. This Panel is of the view that the evidence provided by the claimant, on a balance of probabilities, supports her version of how her injury arose and her continuing problems flowing from that injury.The claimant has worked for her current employer for over twenty years primarily as a data entry clerk. In those twenty years of work she has not taken off one sick day and when she was in too much pain with her current injury to continue working, she used her holiday time to rest. She is a hard working, dedicated and by way of reports on her file, an excellent employee.
In November of 1999, the claimant's employer switched to a new computer system. In the beginning there were many problems with this system requiring a great deal of extra work on the part of the claimant. In addition, all data on the old system needed to be transferred to the new system. This was a process that was stressful, time consuming and prolonged much longer than anyone initially had envisioned. From November of 1999 until June of 2001 the claimant worked 1020 hours of overtime in addition to her regular eight hour day. Typically, during this period the claimant commenced her work day at 5 a.m. and finished at 8 p.m.. She did this for seven days per week.
Prior to this period of overtime, the claimant was a healthy and physically fit individual. She had no pain symptoms and no limitation of movement. It is possibly because of her healthy lifestyle that she did not experience symptoms sooner than she did and that she was able to remain on the job without ever taking any sick days.
In June of 2001 she was in a great deal of pain and was unable to continue working overtime. She did not file a WCB claim at that time because she knew that her pain was from the prolonged and excess overtime that she had been performing. She felt that by discontinuing the overtime, her symptoms would go away. The Panel is not prepared to penalize the claimant for not reporting her injury to the WCB at that time. Her explanation for not filing in a timely fashion is plausible and consistent with her attitude about her work and her healthy lifestyle. The claimant had tried to treat her symptoms with massage therapy on three different occasions up to this point.
The claimant finally did report her condition to the WCB on November 25, 2002 recognizing that her pain symptoms, while improving over time, were not going to go away. On December 2, 2002 her attending chiropractor provided a diagnosis of cervical thoracic strain/sprain. She had also attended a physician on August 15, 2002 at which time he diagnosed myofascial neck and upper back pain and ordered a CT scan which was essentially negative for her clinical symptoms. A physiotherapist that the claimant saw in July of 2002 felt that the claimant was suffering from myofascial pain or cervical osteoarthritis which had been noted on an x-ray.
This Panel has noted the opinion of the WCB medical advisor that the diagnosis was associated degenerative disease of the cervical spine. The claimant, however, experienced no symptoms in her neck and shoulder prior to working the overtime. There is no reason to suggest that the claimant's problems did not stem from her long and excess hours of repetitive overtime as opposed to the natural degenerative changes to her spine.
The medical advisor also noted that there had been ergonomic improvements made to the claimant's work station and that once these changes were made, ongoing problems would not have been expected. The job that the claimant was performing was repetitive, prolonged and often initially completed in an awkward posture due to her work station. Her motions amounted to a repetitive use of the muscles which could have led to the injuries experienced by the claimant. Therefore, even though changes were made to the claimant's work environment, it is possible that the damage had already been done or simply that the excess work required of the claimant during the changeover of the computer systems was responsible for her injuries.
Finally, we would note that we do not agree with the WCB's position that the claimant's outside activities could be the causation for her physical problems. There is no evidence to suggest that being physically active caused any of the claimant's current difficulties. In fact, being physical may have been what kept her from missing any work in the first place. We also note that the evidence indicates that the claimant was unable to participate in her usual exercise regime due to her long periods of overtime.
Taking into account all of the above noted points, we are of the view that the claimant's condition arose out of and in the course of performing her work. The claim is therefore acceptable.
Panel Members
K. Dunlop, Q.C., Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of December, 2003