The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 12, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 12, 1999, February 5, 1999, and May 14, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On December 9, 1996, the claimant stated she felt pain in her arm near the elbow from working on her computer. The pain then moved into her shoulder and neck. The description of accident was confirmed by the employer on January 17, 1997. The diagnosis reported by the attending physician was acute left sided lateral epicondylitis.

A sworn statement was obtained from the claimant, dated January 31, 1997. The claimant stated she worked full time at the main library for 3 years as the purchasing clerk. For the entire shift the claimant used her computer. She did spread sheets, paid and calculated bills through the computer, and prepared NSF cheque reports and time sheets. Eighty percent of her work duty function was numerical typing. The mouse was also used. Her calculator was located on the right side of the keyboard. The claimant said she always had to reach across her body to key in the numbers as she was left handed. Every Wednesday she was responsible for preparing the office supplies and would put the supplies in bags and then taken them down to shipping. She noted that her left elbow would improve on the Wednesday and found it a nice break from her computer work.

The claimant stated that she had problems with her left wrist dating back to 1995 while working at the library but that her wrist was not too painful at the time. She had filled out a report but did not miss any time from work and no WCB claim was ever initiated. The claimant believed the workstations were modified during that time so she was able to adjust the mouse height. Her left wrist improved and she was without difficulties until December 9, 1996 when her left elbow and upper forearm were affected. There was no swelling. The pain would radiate from the left elbow into the upper forearm. The pain was more of a shooting pain which worsened while working. The left shoulder also started to ache. There was nothing unusual about her workload or duties on or around December 9, 1996.

The claimant mentioned that she sought medical treatment on December 9, 1996. The doctor told her that her left elbow problems were work related. After attending treatment three times per week and ordering a new keyboard with the calculator on the left side her left wrist improved. The claimant claimed time loss and costs associated with her chiropractic treatment.

On January 31, 1997, the claimant's supervisor confirmed the job duties that had been described by the claimant. The supervisor indicated that the calculator was located on the right hand side of the claimant's keyboard until the end of 1996. The claimant was always having to reach across her body in order to use the numerical pad located on the right hand side of the keyboard. Prior to having the keyboard changed the claimant had complained that the calculator pad on the right was bothering her.

On March 19, 1997, a medical advisor from the Workers Compensation Board (WCB) reviewed the case. The medical advisor believed that the claimant may have developed her condition at work but there was no direct cause and effect relationship demonstrated. The claimant developed acute lateral epicondylitis on a specific date and in the medical advisor's opinion, such as occurrence would require a specific injury or event.

On April 1, 1997, primary adjudication determined there was insufficient evidence provided to establish a relationship between the worker's left elbow difficulties on December 9, 1996, and an accident arising out of and in the course of her employment. When rendering its decision, primary adjudication noted the following:

• claimant was performing her regular duties with no change in duties, workload, or hours.
• therre was no specific accident or incident to have caused the problems with the left elbow on December 9, 1996.
• the claimant stated that on December 9, 1996, her left elbow and upper forearm were affected while she was working on her computer but there was nothing unusual about the workload or duties. She did not know why her left elbow bothered her on that day and was not really sure about the cause at the time.
• the worker had prior problems with the left wrist and elbow and the symptoms improved when work sites were modified and she was fine until December 9, 1996.

On April 1, 1998, a union representative appealed the above decision to the Review Office contending that the cause of the claimant's problem was the repetitive use of a computer keyboard and extensive use of the computer mouse. The union representative disagreed with the medical advisor's comments that there was a sudden onset of the condition on December 9, 1996, on the basis that the claimant's problems had occurred previously. Information was submitted from the treating chiropractor, dated March 24, 1998, along with articles pertaining to computer mouse use.

A submission was subsequently received from the employer, dated June 16, 1998. The employer's representative believed that there was no medical evidence to support a relationship between the onset of the claimant's epicondylitis condition and her workplace activities.

On June 26, 1998, the Review Office took the position that a relationship between the worker's condition, identified as a left sided lateral epicondylitis, and the worker's employment duties as a purchasing clerk, had not been established. The Review Office determined therefore that the claim for compensation was not acceptable.

At the request of the union representative, an oral hearing was held on October 21, 1998. As a result of certain unforeseen irregularities occurring immediately subsequent to the hearing process, the Chief Appeal Commissioner decided that a new hearing should be convened before a different Panel of Commissioners.

On January 12, 1999, a new hearing was convened before a different Panel of Commissioners. Following the hearing and discussion of the case, the Panel requested that arrangements be made for a work site visit to review the claimant's work station and job tasks that she was performing on December 9, 1996. The job site visit took place on February 5, 1999, and was videotaped. The Panel then requested an independent specialist to review the case along with the videotape evidence and to answer any questions the Appeal Panel had. On May 14, 1999, the Panel met to render its final decision.

Reasons

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"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."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

• A wilful and intentional act that is not the act of the worker,
• 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
• an occupational disease

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

The evidence establishes that the claimant had been working for approximately nine years in what was described as an ergonomically disadvantaged work station without any previous complaints. With respect to her sudden onset of symptoms and possible explanation for same, we attached considerable weight to the comments of a WCB medical advisor contained in a memo, dated March 19th, 1997, in which he stated the following:

"The claimant indicated that she was fine prior to Dec 09/96 and while she was performing her regular duties she developed the pain with no injury and increased work load report. I believe the claimant may have developed her condition at work but there is no direct cause and effect relationship demonstrated. The claimant developed acute lateral epicondylitis on a specific date which in my opinion would require a specific injury or event."

In our role as an enquiry model, we visited the work site and video taped the claimant performing her work routine. She performed her tasks in the same manner as she had been doing at the time of the injury and for the nine years prior to this event. We then requested that the file be reviewed by an independent orthopaedic surgeon. Following his review, the consultant then met with the Panel to answer questions with respect to the case. We attached considerable weight to the response to this question:

Q. You mentioned earlier that you have had an opportunity to review the job duties of this particular claimant. Do you have any observation or comment with respect to the subject of epicondylitis and what you have observed on the video?

R. Well, I don't really have strong feelings about this case, but I would observe that the claimant was working in a mechanically disadvantaged position for a while, being left handed and working mostly on the right hand side. So theoretically, that could be a factor. I'm not sure that was, theoretically.

We find, based on the weight of evidence, that the claimant's lateral epicondylitis was not, on a balance of probabilities, related to her work duties. Therefore, the claim is not acceptable and the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
E. Krosney, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 10th day of June, 1999