Decision #151/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 1, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on June 1, 2005 and again on August 29, 2005.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On February 16, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for right shoulder, arm and neck pain that she related to her job duties that included the constant use of her computer. The date of accident was recorded as being January 6, 2004 and was reported to the employer on the same day.The Employer's Accident Report dated March 10, 2004, confirmed that the worker complained of pain and occasional numbness in her right arm along with pain in her shoulder and neck caused by extended periods at the computer.
On February 16, 2004, the worker sought medical treatment for cervical and lower back pain. The diagnosis rendered by the attending physician was cervicalgia 2º muscle strain.
In a telephone conversation with a WCB adjudicator on March 24, 2004, the worker stated that she spent three quarters of her working day performing research on the internet, e-mail and web development. The worker described her workstation as follows:
- "Set-up: sits at corner of desk to use keyboard, where the two sides meet;
- Has changed chair and lowered monitor;
- Doesn't have enough flexibility with keyboard, feels it is too low;
- She is taller and has chair as low as it will go;
- Wants to have office moved around, as back faces the door."
In a decision dated June 3, 2004, a WCB adjudicator determined that the claim for compensation was not acceptable. The adjudicator noted that the worker was relating her difficulties to the set up of her workspace and the amount of time spent on her computer. As the worker was unable to identify a specific incident having occurred to bring on her symptoms, the adjudicator could not establish a relationship between the worker's current symptoms and an accident arising out of and in the course of her employment.
On June 25, 2004, the worker appealed the WCB's decision of June 3, 2004 and provided the following new information:
"When you had inquired if I could think of any other activity I could have done to injure myself …Please note that I engaged in many activities involving relocating and moving chairs and tables in October 2003 and had attended a few external meetings in October, November and December 2003 which required carrying boxes to carry and install our display booth."Following review of the additional information provided by the worker on June 25, 2004, the WCB determined that no change would be made to the initial decision of June 3, 2004. On August 25, 2004, the worker appealed this decision to Review Office.
In a decision dated October 5, 2004, Review Office confirmed that the claim was not acceptable. Review Office concluded that the worker's activities on her computer were not responsible for her condition given that she performed them for two years without difficulty and there were no significant changes in her work activities to account for the onset of her symptoms. Review Office also concluded that moving tables, chairs, boxes and display booths over a period of several months would not be responsible for the worker's condition given that she would be required to use both arms for these tasks and only her right arm, shoulder and neck, had been affected. On February 15, 2005, the worker's union representative appealed this decision to the Appeal Commission and an oral hearing was arranged.
On June 1, 2005, an oral hearing was held. Following the hearing, the Appeal Panel determined that additional information was required prior to discussing the case further. Specifically, the Panel requested additional information from the worker's treating physician and chiropractor. On August 4, 2005, all interested parties were provided with copies of the reports that were received from the chiropractor and treating physician and were asked to provide comment. On August 29, 2005, the Panel met to render its final decision.
Reasons
The Panel was asked to determine whether the worker's claim is acceptable. For this appeal to be successful, the Panel must find a causal relationship exists between the worker's employment duties and her condition. The Panel was not able to make this finding. The Panel found that the worker's claim is not acceptable.Argument and Evidence at Hearing
The worker attended the hearing with a union representative who made a presentation on her behalf. The worker answered questions posed by the Panel.
The worker described the onset of symptoms. She said that she had a constant pain in her shoulder and numbness in her arm and hand. She also said she had pain across her whole neck and shoulder. She did not have any particular problem with her wrists, forearms or elbows. She advised that her condition gets better when she rests. The worker stated that she is much better now but continues to have pain in the shoulder and neck.
In answer to a question, the worker indicated that both her work and workstation were responsible for her condition. She described her duties and the various tasks she performs. She stated that her job is to research information and give that information to clients. She listed the computer programs that she uses in performing her duties. She noted that she deals with 50 to 70 e-mails each day. She also does web development work. She receives 10 to 20 phone calls each day and on a busy day may have 4 or 5 walk-in clients. The worker was asked about the longest period of straight typing, she replied that she may type reports for one or two hours. This may occur two or three times per week.
The worker advised that she is also responsible for moving and setting up a display booth. She must also move tables and chairs, carry boxes weighing between 5 and 30 pounds, a laptop and a projector.
With respect to her work station, she stated that the keyboard position was totally wrong, causing her to work with discomfort. Her chair was at the wrong height. As well the keyboard was poorly located, causing her to have to turn to see who was coming into her work area. An ergonomic assessment was done which confirmed problems with her workstation. She advised that the problems have now been fixed.
The worker described her visits to her attending physician and chiropractor. She is currently receiving chiropractic treatment. She advised that although physiotherapy was recommended, she did not receive this treatment as the WCB denied her claim.
The union representative disagreed with the Review Office decision. He noted that the worker need not have a specific incident to have an acceptable claim. He advised that the worker spends 75% of her work time at a computer. He stated that it is probable that working at her workstation caused the signs and symptoms that the worker displayed at the time that she filed her claim. He referred to an ergonomic assessment of the worker's workstation and a memorandum from the employer acknowledging problems with similar workstations.
He stated that the claim should have been accepted as a repetitive strain injury which was caused by the poor ergonomic design of her workstation.
Analysis
After considering all the evidence the Panel finds, on a balance of probabilities, that the worker's employment did not cause her symptoms.
The worker's attending physician diagnosed the worker's condition as cervicalgia with possible developing thoracic outlet syndrome. She stated that the worker's symptoms are "… related to a repetitive strain injury with secondary thoracic outlet syndrome arising from the numerous hours this patient is required to remain at a computer station for her work duties." The Panel carefully considered the worker's job duties and activities as described by the worker. The Panel is unable to find that the worker's job is repetitive to the extent it caused the worker's symptoms. The Panel finds the worker's job duties to be varied and not highly repetitive.
Although the workstation required and received ergonomic changes, the Panel finds that the changes were minor and, on a balance of probabilities, cannot attribute the worker's symptoms to the workstation. The Panel notes that the worker continues to have symptoms notwithstanding that the workstation has been changed.
The appeal is accordingly declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of September, 2005