The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 15, 2004, at the request of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On June 9, 2003, the claimant submitted a claim application to the Workers Compensation Board (WCB) describing the following difficulties that she was experiencing during the course of her employment as an accounting clerk: "Since the changeover in our workstations, I have developed pain in my neck, arm and wrist. I have also developed a numbness in my right thumb. This has necessitated me to seek medical attention."

In a letter attached to the application, the claimant stated that over the past several years she had had pain in her lower and upper back and that she had received therapy from a massage therapist, which seemed to help the pain. She also stated that she had been having a lot more pain in her right shoulder/neck area in the past few months and had noticed that she had headaches that seemed to radiate from this area. The claimant went on to say that she felt good when she woke up on the morning of May 9, 2003 until she stretched and felt a crunch in her neck. She then had a hard time getting up out of bed but proceeded to get ready for work with difficulty. The claimant provided details with respect to the medical treatment that she received from her chiropractor, a walk-in clinic and her regular physician. The claimant commented that she was told by her physiotherapist that she had carpal tunnel syndrome in her right wrist, tendonitis of her right shoulder and stenosis in her neck. The therapist believed that all of her problems were work related, possibly starting with the changeover in work stations in the past two months.

In the Employer's Report of Injury form dated June 12, 2003, the employer stated that it was unclear as to whether or not the worker's condition had anything to do with the workplace as her complaints started around gardening and yard care time which the claimant enjoyed doing and did a lot.

On July 3, 2003, the claimant advised a WCB adjudicator of changes that had been made to her work station in April 2003. The claimant felt that her current problem was a result of her body adjusting to the new work station. She was therefore claiming for physiotherapy, chiropractic and medication costs. The claimant commented that she did not complain to anyone at work prior to May 9, 2003 because she wasn't feeling too bad and the pain was not severe enough to warrant mentioning it.

On July 9, 2003, the employer was contacted. He advised the adjudicator that the claimant did complain about her work and her work station over the years. The employer commented that because other staff complained about work stations, the employer got all new work stations in March 2003.

On July 17, 2003, the claimant was advised in writing that her claim for compensation was not acceptable. The adjudicator noted that medical reports were obtained dating back to December 1997 and at no time was there any mention of work causing the claimant's neck pain. The adjudicator referred to sections 4(1) and 1(1) of The Workers Compensation Act (the Act) and was of the view that the evidence provided did not establish a relationship between the development of the claimant's symptoms and an accident arising out of and in the course of her employment. On October 26, 2003, the claimant appealed this decision to Review Office.

In a decision dated November 17, 2003, Review Office stated that it had contacted the attending physician's office and was advised that the claimant had been seen by that doctor between February 12, 2003 and May 9, 2003 but not for neck and shoulder problems. The claimant was first seen for neck and shoulder complaints on May 20, 2003. The chiropractor's office stated that the claimant had not been seen for neck/shoulder problems prior to May 9, 2003.

Review Office concluded that based on a balance of probabilities, the claimant's neck/shoulder problems post May 9, 2003, were not related to her employment activities. Review Office noted that the claimant was not seen by her doctor or her chiropractor prior to May 9, 2003. She was feeling good when she got up on May 9 until she stretched. The stretch caused the claimant's neck to crack and caused her immediate pain. Following that, the claimant had been seeing her doctors regularly for the neck/shoulder problems. In January 2004, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

The claimant has appealed the decision of the Review Office to address what the claimant perceives have been misconceptions in the way that the medical evidence on file has been interpreted and to present additional evidence by way of oral testimony.

The claimant seeks compensation for the expenses of physiotherapy, chiropractic treatment and massage therapy which she has been receiving and which she may continue to receive for pain in the neck, shoulder and upper back area. These symptoms the claimant says, are caused by her employment conditions and duties.

The claimant testified that she has been employed for 17 years as an accounting clerk, with the same employer. Her duties involve working from 8:00 a.m. to 4:00 p.m. doing a lot of desk work and computer work. She testified that in late March or early April of 2003 her employer changed aspects of her workstation. Her workstation consisted of a desk placed in front of her and a keyboard placed to her left. In the newly constructed workstation, because the keypad on the keyboard was very thick, the keyboard had to be installed at a very low level. This required her to constantly raise and lower her body working from desk to keyboard. The discrepancy in work surfaces created a lack of support for her right arm. Around November of 2003 the claimant did find a work chair with armrests which provided her with more support.

The claimant testified that when the workstation changed she experienced upper shoulder pain because her shoulders were adjusting to typing at a lower level. She also testified that once the workstation was changed she noticed more pain in her neck. The claimant went for massage therapy treatments to help with her upper back and shoulders.

The claimant testified that on May 9, 2003 she woke up in bed, stretched and then all of a sudden felt her neck "crunch" and she experienced a burning sensation. She immediately went to see a chiropractor who treated her over several days. She ceased treatment with the chiropractor on the advice of her physician who felt that numbness in her thumb which the claimant had also begun to experience, could have been attributed to the chiropractic treatment.

The claimant has never taken any time off work with respect to the symptoms which form the basis of this claim. On June 9, 2003, the claimant submitted a formal claim to the Worker's Compensation Board indicating injuries in her right neck, shoulder, arm, wrist and thumb which she attributed to the changeover in workstation.

The claimant testified that the initial problem with the numbness down the right thumb corrected itself probably within a month of experiencing the "crunch" in May 2003. She said she continued, however, to have neck and shoulder pain for which she sought treatment. From the end of May 2003 onward, the claimant received treatment for these symptoms from a general physician, a physiotherapist and a massage therapist.

When asked about written comments made by her employer which suggested that the claimant's symptoms and subsequent claim to the Worker's Compensation Board were perhaps related to gardening or volleyball activities, the claimant stated that she had not engaged in either of those activities around the time that the symptoms for which she both sought treatment and submitted a claim, arose.

The claimant also testified that, in her opinion, the "crunch" of May 9, 2003 could have happened at any time. Submissions made on her behalf were to the effect that the "crunch" was neither the start of her problems nor was it related to the majority of her difficulties. Rather, it was submitted, it simply brought to light the other problems the claimant was experiencing and prompted her to seek further treatment and diagnosis from her physiotherapist. The claimant testified that the physiotherapist told her that in his opinion, the change in her workstation and the physical adaptation required to meet that change, were the cause of her difficulties.

The medical reports submitted on behalf of the claimant, also supported her submissions.

With respect to the cause of the claimant's symptoms, the claimant's physiotherapist in a report dated September 25, 2003 indicated that the claimant's symptoms were "definitely postural and work related". The claimant's general physician provided two reports in that regard. In a report dated July 10, 2003 the physician commented on the results of a CT scan which had been taken of the claimant's neck to rule out possible compression of the nerve due to narrowing of the neural foramina. The physician noted that no evidence of this could be found on the CT scan and that following physiotherapy, the claimant had improved. The physician went on to conclude that in light of the new reports from the special examinations it is quite "likely that her job could have a definite causative link to her symptoms and any changes in posture or work position that would prevent this in the future would be quite helpful to her".

A further report dated September 22, 2003 from this physician confirmed that the claimant developed neck pain at work and spent a lot of time at her desk which was not conducive to good posture or ergonomically adjustable to suit her needs.

The claimant's employer also provided a letter dated April 2, 2004 supporting the claimant's claim.

For the claimant's claim to be accepted, it must fall within the provisions of subsection 4(1) of the Act which govern when compensation is payable out of the Accident Fund. Subsection 4(1) provides as follows:

"Where in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the Board out of the Accident Fund, subject to the following subsections."

"Accident" is defined in subsection 1(1) of the Act as follows:

"a chance event occasioned by a physical or natural cause; and includes:

1. a wilful and intentional act that is not the act of a worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease,

and as a result of which a worker is injured."

In considering the evidence, the Panel notes that there are two possible sources of the claimant's difficulties, one being an incident on May 9, 2003 in which the claimant felt a "crunch" when stretching in bed at home, and the second being progressive, non-specific neck and shoulder difficulties arising out of her work duties.

The Panel, after considering all the evidence, finds that the incident which the claimant describes as having occurred on May 9, 2003, was not an event which arose out of or in the course of employment. The evidence disclosed that the claimant felt a "crunch" in her shoulder while stretching in bed at home on that date, with symptoms immediately arising from that incident. We note that the symptoms associated with that acute event resolved relatively quickly as the claimant testified, within approximately one month of the event having occurred. Therefore, the Panel finds that the claim with respect to treatment received for the specific symptoms associated with the May 9, 2003 acute event is not acceptable.

However, the Panel does find that the claimant suffered a non-specific work place injury to her neck and shoulder as a consequence of the redesign of her workstation which occurred in the spring (March/April) of 2003. In this regard, we rely upon reports of the claimant's attending physician and physiotherapist who noted potential difficulties related to her workstation, and which correlate with the claimant's description of the changed postures that she had to learn. We also note that these problems began to resolve after treatment.

Therefore, the Panel finds there is a causal relationship between the claimant's neck and shoulder difficulties and the redesign of her work station in the spring of 2003. The Panel finds that the claim is acceptable and that responsibility should be accepted for medical aid treatments commencing May 20, 2003. This appears to be the date by which the acute event of May 9, 2003 had resolved.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of May, 2004