The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 5, 2005, at the request of a union representative, acting on behalf of the worker. 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 September 15, 2003, the worker filed a claim with the Workers Compensation Board (WCB) for a right elbow injury that she related to data entry and writing that she did every day during the course of her employment as an accounts payable clerk. The date of accident was recorded as being July 15, 2003. The worker indicated that she had reported the accident to her employer on September 15, 2003 as she thought the pain would go away.

In a memo to file dated September 17, 2003, a WCB adjudicator recorded details of a telephone conversation that he had with the worker concerning the job duties that she felt had led to her right elbow difficulties. The adjudicator also contacted the accident employer to obtain details of an ergonomic assessment that had been carried out with respect to the worksite.

Medical information revealed that the worker was examined by a chiropractor on July 15, 2003. The diagnosis rendered was right lateral epicondylitis and brachioradialis strain with signs of neurological involvement of the radial and median nerve.

In a memo dated November 14, 2003, a WCB adjudicator documented that he had discussed the case with both a WCB medical advisor and a chiropractic consultant on November 13, 2003. It was both of their opinions that the mechanics of injury were not consistent with the current diagnosis.

On November 17, 2003, primary adjudication advised the worker that her claim for compensation was denied. The letter stated, in part, the following:

"…you first noticed problems with your right elbow in June of 2003. There was no one specific accident or incident at work, and there were no significant changes in your job duties or increases in workload to account for the onset of symptoms. You continued to perform your full regular duties and did not feel it was necessary to seek medical attention at this time. You returned to work after 4 weeks of pre-booked vacation in August 2003 and over the next several weeks noticed a substantial increase in your symptoms. You submitted a claim with our office in September of 2003 relating your problems to your job duties as an Accounts Payable Clerk.

…the fact there was no accident or incident at work, nor any significant changes in your job duties/workload and the opinion of both a WCB medical and chiropractic advisor, Rehabilitation & Compensation Services is unable to establish a relationship between the development of your symptoms and an accident as defined in Section 1(1)."

On February 12, 2004, the worker's union representative wrote to the Review Office and enclosed a report from an occupational health nurse dated December 8, 2003 which attributed the worker's tendonitis to repeated mouse activity at a poor ergonomic work station. Based on this evidence, the union representative asked Review Office to overturn the adjudicative decision of November 17, 2003 and to provide full WCB benefits to the worker.

On April 8, 2004, Review Office determined that the claim was not acceptable. Review Office's opinion was that the diagnoses of right lateral epicondylitis and brachioradialis strain with signs of neurological involvement of radial and median nerve were not consistent with the worker's job activities as an accounts payable clerk. This was supported by the opinions expressed by both a WCB medical advisor and a chiropractic consultant. Review Office also noted that the worker had informed the occupational health nurse that she developed tendonitis and had been symptomatic since the year 2000. Review Office said there was no medical evidence of any right arm problem prior to July 2003 and yet the worker attributed her problems to 'increased operation of a mouse' which she only performed in 2003. This did not explain the worker's statement to the occupational health nurse that she had experienced 'problems in the year 2000'.

Review Office concluded that the 'operation of a mouse' and poor ergonomics did not meet the legislative requirements for definition of an accident and that the evidence did not establish that the worker suffered a personal injury arising out of and in the course of her employment.

On July 29, 2004, a second union representative provided Review Office with new medical information from three physicians that contradicted the opinions expressed by the WCB's medical and chiropractic consultants. The union believed that these opinions should be given the appropriate weight that they deserved inasmuch as they were prepared by practitioners who had examined the worker. The representative asserted that the worker's employer switched to a new computer system which resulted in an increase in WCB claims for repetitive strain injuries for its employees.

Prior to considering the appeal, Review Office obtained additional information from the treating chiropractor, the worker, the occupational health nurse and a WCB orthopaedic consultant. It also considered a submission from the employer's representative in response to the union's appeal of July 29, 2004.

On December 19, 2004, Review Office confirmed that no change would be made to its April 8, 2004 decision. Following review of the file evidence, Review Office was unable to establish that the mechanics involved in the worker's job activities, 'increased mouse usage', or ergonomics, were causal in the development of her lateral epicondylitis condition. Review Office did believe, however, that the worker may be 'symptomatic' while performing any work activity or otherwise, and that she continued to receive treatment in excess of one year. Her condition was not improving despite being removed from her work duties. On a balance of probabilities, Review Office believed that the worker's problems were not causally related to her work. On January 29, 2005, the worker's union appealed Review Office's decision on her behalf and an oral hearing was arranged.

Reasons

After having considered all of the evidence, we find that the worker’s job duties did, on a balance of probabilities, aggravate her condition. Therefore, the worker sustained an accident arising out of and in the course of her employment which resulted in injury. Accordingly, the worker’s claim is acceptable and her appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of May, 2005