The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on November 9, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on November 9, 2005, December 12, 2005 and again on March 21, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On November 9, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for right forearm, hand and index finger difficulties that began on October 21, 2004 which she felt was due to the repetitive nature of her employment activities as a customer service representative. The worker stated,

"I think it is from using the mouse with my right hand and clicking on the mouse a thousand times a day (approx.). The clicking on the mouse with my right index finger is what caused my injury - I have to do it a lot each day as my job is very repetitive. I am left handed normally but I had set up my desk as a right handed person. My mouse was to the right (it is now to the left - recently changed as of Nov. 1, 2004 - new job). From May of 1998 to Oct. 28, 2004 I had been a customer service rep. My job entailed - taking phone calls (average 100 a day), entering cases on the phone, looking for info on our internal web site, navigating through various website applications etc. I do a moderate amount of typing (depends on call) and I use my mouse a lot. My work station (sic) is ergonomic but my right arm was still aggravated by the constant mouse use."

A Doctor's First Report dated November 9, 2004 indicated that the worker was treated on October 29, 2004. The diagnosis rendered was tendonitis of the right forearm and hand.

A Chiropractor's First Report dated December 8, 2004 indicated that the worker was treated on October 25, 2004. His diagnosis of the worker's condition was carpal tunnel/repetitive sprain/strain injury with median nerve involvement.

In a letter dated November 17, 2004, the employer's representative presented information in support of the position to deny the claim. Specifically, the employer indicated that the factors thought to produce repetitive strain injuries were not present and that keyboarding and mousing had not been found to produce carpal tunnel syndrome (CTS) or other forms of repetitive strain injuries.

On November 30, 2004, a WCB adjudicator advised the employer that the worker's claim for compensation had been accepted but not based on the diagnosis of CTS.

On February 3, 2005, the adjudicator determined that a relationship existed between the development of the worker's right arm difficulties and an accident arising out of and in the course of her employment. On March 30, 2005, the employer's representative appealed this decision to Review Office.

Prior to considering the employer's appeal, Review Office arranged for a WCB rehabilitation specialist to perform an ergonomic assessment of the worker's work station. A memo pertaining to this visit is dated June 1, 2005.

On June 2, 2005, Review Office overturned primary adjudication's decision to accept the claim. Review Office found insufficient evidence to conclude that the worker's right forearm and hand tendonitis arose out of and in the course of her employment. In reaching this decision, Review Office considered the findings of the WCB rehabilitation specialist who found that the worker had a good workstation set up with good positions noted at the hand and wrist while using the mouse. Although the worker's job was repetitive, Review Office felt there were certain features that made the task of mouse use non-repetitive by definition. On July 25, 2005, the worker appealed Review Office's decision and a hearing took place on November 9, 2005.

Following the hearing, the appeal panel met on several occasions to discuss the case. On November 9, 2005, the appeal panel requested a work site visit to observe the worker's job activities at the "transactional channel" for a customer service representative. After the work site visit on December 12, 2005, the appeal panel requested additional information from the employer's representative. On March 21, 2006, the Panel met further to discuss the case and rendered its final decision.

Reasons

The issue before the panel was whether the worker's claim is acceptable. For the appeal to succeed the panel must find a causal relationship between the worker's injury and her employment duties. The panel did find that the worker's injury was caused by her employment duties and that the claim is acceptable.

Evidence and Argument at Hearing

The worker attended the hearing with a union representative who assisted the worker. The employer was represented by a staff person who made a presentation on behalf of the employer.

The worker and her representative answered questions posed by the panel.

The worker advised that she works in a call centre which receives incoming calls. There are three different areas or channels of calls, namely transactional, commercial and consumer. The worker described the duties in each channel. At the time of her injury in October 2004 she was working in the transactional line. When her symptoms flared up in February 2005, she had just returned to a position in the consumer line.

The worker and representative provided a detailed explanation of how calls are processed. They advised that there are many screens, and fields that require significant scrolling and moving of the mouse. The worker's mouse did not have a roller ball at the time of the injury. The representative reported that an average trace call could involve 87 clicks of the mouse.

The worker advised that she is left handed but had been using her right hand to operate the mouse. After October 2004 she switched to her left hand and has used her left hand since.

The worker attributes both her initial symptoms and the later flare up to her job duties. She advised that she has been diagnosed with right tendonitis. She was asked why the February 2005 flare-up was related to her duties as she was no longer using the mouse with her right hand. She responded:

"Well, the injury still wasn't completely healed so when I went back to the consumer line, just the increase in work. And then you're still moving that index finger when you're typing. So it was just with the increase of calls, it just flared up."

The worker and her representative did not agree with the report prepared by the WCB rehabilitation specialist. The representative noted that the number of mouse clicks per call is higher than noted in the report. The worker advised that the rehabilitation specialist did not observe her working at the position.

The employer's representative agreed with the WCB rehabilitation specialist and asked the panel to place significant weight on the rehabilitation specialist's report. She noted that the worker's workstation is considered ergonomically correct and that as of November 2004, further changes were made to assist the worker. She also noted that the flare-up of symptoms in February 2005 occurred despite the fact that the worker was no longer using her right hand to operate a mouse and concluded that this suggests that the worker's duties did not contribute to the development of her right forearm/hand tendonitis. The representative suggested that the worker's right forearm tendonitis developed due to outside factors.

As noted in the background, after the oral hearing the panel visited the job site and obtained additional information from the employer.

Analysis

The panel has considered all the evidence on this claim file and the arguments made by the parties at the hearing, and finds, on a balance of probabilities, that the worker's injury is directly related to her job duties. The panel finds that the claim is acceptable as an accident in accordance with the Government Employees Compensation Act.

In arriving at this decision, the panel has considered the information on the claim file including the WCB rehabilitation specialist's report. The panel has also had the benefit of the description of the worker's duties provided at the hearing and a site visit to observe the duties being performed.

The rehabilitation specialist noted there are approximately 10 mouse clicks per call. During the site visit, the panel observed well in excess of 10 mouse clicks per call. The panel accepts the evidence of the worker and her representative that there are significantly more than 10 clicks per call. The representative advised at the hearing that she had calculated 87 clicks of the mouse in an average trace call. The rehabilitation specialist also noted that mousing was "…broken up in the cycle by researching data on the internet, keying and then mousing." The panel observed long sequencing of mouse use without breaks. The panel prefers to rely on the worker's evidence at the hearing and the panel's observations during the site visit rather than the rehabilitation specialist's report.

The panel notes that the worker immediately attributed the condition to her duties and that the condition related only to her right side which was involved in the mouse use. The panel considers that the high volume of mouse use is not inconsistent with the development of tendonitis in the tendons of the forearm. As well, the panel notes there was no obvious non-occupational cause referenced in the information.

With respect to the flare-up of symptoms in February 2005, the panel accepts the worker's explanation that her injury had not healed and that the increased activities associated with her return to the consumer line resulted in the flare-up.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of May, 2006