The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 2, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on June 2, 1999.

Issue

Whether the claim is acceptable; and

Whether a Medical Review Panel should be convened.

Decision

That the claim is acceptable.

Background

On April 10, 1997, the claimant submitted an application for compensation benefits with regard to right wrist, elbow and thumb difficulties which she related to her employment activities as an administrative assistant. On her application for benefits, the claimant stated that she began to notice discomfort in her right wrist and thumb in late October 1996 that the discomfort gradually increased in intensity and moved to the middle of her right forearm.

By early January, 1997, the pain moved to the right elbow, the forearm and continued to hurt. The claimant stated that lifting objects became increasingly painful and that using the mouse, keyboard and writing became more and more difficult. The claimant advised that she attended her general practitioner for treatment on January 6, 1997, and was diagnosed with tennis elbow and was referred for physiotherapy. The claimant indicated after 12 physiotherapy treatments the pain remained acute and chronic and that acupuncture was suggested. After two acupuncture treatments the pain increased and she began to experience swelling in the wrist area with pain and numbness on the outside of her little finger extending up her arm. The claimant was subsequently seen by a sports medicine physician who suggested cortisone treatments.

On May 14, 1997, the claimant spoke with a Workers Compensation Board (WCB) adjudicator about her job duties. The claimant stated that she had been doing computer work for the last 16 years and had been at her present job for the past 5 years. The claimant indicated that she uses a keyboard and mouse for approximately 5-6 hours per shift. The keyboard was located under the desk and could be pulled out and the height adjusted. The work station was found to be ergonomically correct. The claimant advised that the mouse was located at the right side of the computer and that she used the keyboard and mouse on a regular basis.

The Employer's Report of Injury dated March 27, 1997, indicated that the exact time or nature of injury was unknown. It was reported that pain had developed in the right wrist including the thumb area and then later, the pain was noted in the right elbow and forearm.

Medical information was received from the first attending physician dated April 6, 1997. The diagnosis as of January 6, 1997, was reported as tennis elbow and questionable Dequervains tendonitis. On April 4, 1997, a second physician diagnosed the claimant with lateral epicondylitis.

At the request of primary adjudication, the case was reviewed by a WCB medical advisor on May 20, 1997. The medical advisor was of the opinion that the diagnosis of lateral epicondylitis was not consistent with the claimant's symptoms and work activities. The medical advisor pointed out that no specific injury had occurred and that the claimant's work duties were not strenuous enough to cause epicondylitis.

On May 27, 1997, the claimant and employer were notified by Claims Adjudication that the claim was not acceptable. Claims Services considered the diagnoses provided by the attending physicians as well as the job description provided by the claimant. It was determined that:

• there was insufficient evidence to conclude that the wrist, forearm and elbow difficulties were caused by an accident arising out of employment.
• a review of the claimant's job description did not confirm that hand gripping and forceful gripping, which was believed to be commonly associated with Dequervains tendonitis, were activities that were common in the claimant's employment duties.
• the claimant's work activities were not considered to be sufficiently strenuous to result in the development of lateral epicondylitis.
• the claimant's work station was found to be ergonomically correct and was not considered to be the cause of her problems.

On March 23, 1998, the Review Office acknowledged the claimant's submission requesting reconsideration of the adjudicator's decision of May 27, 1997. The claimant contended that her attending physician had said that her work duties were responsible for aggravation of her problem and that another doctor had told her the pain would not improve unless she took some time off work.

In a decision dated March 27, 1998, the Review Office determined that the claimant was not entitled to benefits for the effects of a right elbow problem which prompted her to file a claim in April 1997, and resulted in some time loss from work about March 1998. The Review Office believed that while the claimant's work activities may have resulted in increased pain or symptoms due to an underlying condition of tendonitis or epicondylitis, it could not find sufficient evidence to show that these work activities more likely than not contributed to the cause of these underlying conditions or clinically aggravated or enhanced the underlying conditions. Review Office considered the claimant's job activities likely did not result in sufficient stress or strain to the arm tendons to be a probable cause of either tendonitis or epicondylitis. Review Office did not find evidence to indicate that these particular conditions were peculiar to or characteristic of the claimant's trade or occupation.

On July 13, 1998, a worker advisor requested reconsideration of the Review Office's March 27, 1998 decision, based on new medical information. The worker advisor contended that the weight of evidence as well as the new medical evidence established, on a balance of probabilities, that the claimant's right arm/elbow condition arose out of and in the course of her employment.

In a letter addressed to the worker advisor dated June 17, 1998, the attending physician stated that despite the lack of a specific incident of injury, it was his opinion that the claimant's symptoms came on as a result of her prolonged use of the computer keyboard and mouse. The physician noted that the claimant's right arm problem resulted from duties at work and that similar symptoms had recently developed in the left arm.

On June 8, 1998, the orthopaedic surgeon responded to specific questions posed by the worker advisor. In part, the orthopaedic surgeon noted that the diagnosis for the claimant's right arm /elbow condition was refractory lateral epicondylitis or tennis elbow. He further noted that the present diagnosis and her previous diagnoses were a continuum of overuse syndrome, commonly attributed to repetitive fine motor use of the arm such as working at a cash register or a computer.

Prior to rendering a decision, the Review Office obtained an opinion from a WCB orthopaedic consultant on August 11, 1998. The orthopaedic consultant stated the following:

1. The literature is replete with both sides of the argument and therefore remains controversial.
2. Repetitive movements are made against some type of resistance in order to accomplish work tasks, whether it be mechanical, i.e. the equipment or just against gravity. The force may be minimal but if prolonged and ongoing, it can give rise to tissue fatigue and the subsequent development of a tenosynovitis. Typists and computer operators have risk factors for this to occur, due to the nature of their work, possibly poor ergonomics or poor work habits.
3. Lateral epicondylitis, which is a problem occurring at the musculotendinous origin of the extensor muscles to the wrist and fingers, is less likely to occur with repetitive non-forceful activity, but it can be aggravated by this type of activity. The initial onset usually requires a significant forceful stress being applied to the extensor origin, often in association with degenerative changes in the tendinous origin. Tenosynovitis is not uncommon among typists and computer operations, but lateral epicondylitis is less likely with this type of work activity."

Based on the comments expressed by the WCB orthopaedic consultant on August 11, 1998, the Review Office notified the claimant and worker advisor that no change would be made to its earlier decision of March 27, 1998.

On September 21, 1998, the worker advisor contended that a definite difference of medical opinion existed between the claimant's attending physicians and the WCB's orthopaedic consultant and requested a Medical Review Panel, in accordance with Section 67 of the Workers Compensation Act. On October 8, 1998, the Review Office denied the request for a MRP as it did not consider that the differing opinions expressed by the attending physicians had included a statement of facts and reasons supporting a medical conclusion.

On March 16, 1999, a worker advisor appealed the previous Review Office's decisions and requested an oral hearing.

Reasons

The claimant is seeking to establish that her difficulties with her right wrist, thumb, and elbow are related to her employment as an administrative assistant, and that she is accordingly entitled to benefits under the Workers Compensation Act (the Act). In the alternative, the claimant asks that a Medical Review Panel be convened under subsection 67(4) of the Act.

Dealing with the first issue, that being whether the claim is acceptable, the relevant subsections of the Act are 1(1) and 4(1), which define an "accident" and the requirement that the accident arise out of and in the course of employment.

Definitions

I(1) In this Act,

"accident" means a chance event occasioned by a physical or natural cause; and includes
1. a willful and intentional act that is not the act of the 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.

Section 4(1) of the Act states:

"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."

After a review of the evidence on file, and the evidence of the claimant and the submissions of the claimant's advocate and the employer representative at the hearing, we find on a balance of probabilities that the claimant suffered injuries to her wrist/thumb at the workplace as a result of her workplace activities. Accordingly we find that an accident arose out of and in the course of employment, as required by the Act, and that the claim is therefore acceptable.

In reviewing the evidence that supports this finding, we note that although the claimant's symptoms were first present in October 1996, a claim was not filed until April 1997. As a consequence many of the reports and investigations refer to both the original conditions evident in 1996 as well as subsequent medical conditions present on the dates of those later investigations. Our decision relating to claim acceptability deals with the medical conditions noted in 1996, as supported by the following evidence:

• The Worker's Report of Accident dated April 10, 1997 provides the following history: "In late October 1996 I began to notice discomfort in my right wrist and thumb. The discomfort continued to increase in intensity and began to move to the middle of my right forearm. By late December/96 the pain was more constant and intense."
• A first report by the claimant's attending physician dated April 6, 1997 describes the claimant's history of injury as reported on January 6, 1997, as "aching R elbow and wrist from using computer at work (especially mouse)." Objective findings were a tender lateral epicondyle, and tender thumb extensor tendon.
• The claimant's attending physician provides a more comprehensive history in a report dated June 17, 1998:
  "[Claimant] describes her problems as starting in October of 1996 with pain, tenderness and swelling in the area of the right wrist on the thumb side with the pain subsequently becoming more severe and spreading up the forearm to the lateral side of the elbow. When examined on January 6, 1997, she had signs consistent with tennis elbow and tendonitis of the right thumb. Despite the lack of a specific incident of injury, it is my opinion that the symptoms came as a result of her duties at work, particularly prolonged use of the computer keyboard and mouse. "
• A memo from a WCB medical advisor to a WCB Review Officer dated August 11, 1998 responds to questions regarding the linkage between repetitive but non-stressful movements of the fingers, hands, and arms to increased risks for the development of epicondylitis or right thumb tendonitis. We note in particular his comments regarding tenosynovitis:
  "Repetitive movements are made against some type of resistance in order to accomplish work tasks, whether it be mechanical, i.e. the equipment or just against gravity. The force may be minimal but if prolonged and ongoing, it can give rise to tissue fatigue and the subsequent development of a tenosynovitis. Typists and computer operators have risk factors for this to occur, due to the nature of their work, possibly poor ergonomics or poor work habits.

  Lateral epicondylitis, which is a problem occurring at the musculotendinous origin of the extensor muscles to the wrist and fingers, is less likely to occur with repetitive non-forceful activity, but it can be aggravated by this type of activity. The initial onset usually requires a significant forceful stress being applied to the extensor origin, often in association with degenerative changes in the tendinous origin. Tenosynovitis is not uncommon among typists and computer operator, but lateral epicondylitis is less likely with this type of work activity." [Emphasis ours]

• A letter from the employer dated March 10, 1998 indicates that the claimant started with the employer on August 10, 1992, and that at the time of her initial employment, she was physically capable of performing all job functions and did so satisfactorily. The employer then notes that,
  "when she first began to experience pain in her arm and hand, it was very visually evident and over time the most minute of movements caused her extreme pain and discomfort which has been visible and has been documented as a concern in the Occupational Health Unit."
• A letter from the employer dated December 3, 1998 states that "once [claimant] began to experience the difficulties in her right arm and hand, normal work place activities such as typing, using the mouse and keyboard and writing seemed to aggravate her condition and cause her a great deal of pain at times.
• Repetitive work of this nature also appeared to cause the right hand and arm to become inflamed and we saw that condition in the workplace"
• The evidence of both the claimant and employer's representative at the hearing was that the claimant was an experienced typist/computer operator. We note in particular the evidence of the employer at the hearing that the claimant started with the employer as an administrative assistant in what was described as a "standard type of position." The employer then notes that the facility was then involved in an implementation and expansion of computerization in which the claimant was "intensely involved." The employer's evidence elaborates on the impact of the changes on the claimant:
  "To that end, she worked almost exclusively then for a period of time in that field, where she was developing the templates to go into the system for centre-wide usage, the development of those templates requiring a great number of hours of concentrated work on the keyboard and as well with the mouse. And so a lot of the other duties, taking of regular minutes, filing, those sorts of things, were transferred over to other employees to pick up during this period of time. We saw the initial aggravation, if you will, of [claimant's] arm. And all we can do is to try and share with you, as the employer, our observations, where we, you know, we were aware of her initial discomfort, her initial difficulties and saw it progress to the point that there was absolutely no question that, after having had a couple of days off, if she returned to work, immediately upon recommencing the duties with the mouse and the keyboard it aggravated her arm. I mean, there was apparent swelling. I mean, the toll that the pain took on her was very physically visible."

We find that the evidence establishes, on a balance of probabilities, that there was an increase in workplace activities that led to the development of initial problems in the wrist and thumb area, in particular, tendonitis. Accordingly, we find that there was an accident that arose out of and in the course of the claimant's employment, and that the claim is acceptable. Therefore the claimant's appeal on this issue is allowed.

We would note that the subsequent medical conditions referred to on the file, particularly lateral epicondylitis, were diagnosed subsequent to the original medical conditions, and are not related to the issue of initial claim acceptability. As we have determined that the claim is acceptable, the file will be referred back to the WCB for adjudication in respect of the relationship of the later medical conditions to the original compensable accident, as part of WCB's overall responsibility to determine the nature and scope of the claimant's benefits entitlements.

Regarding the second issue, being the claimant's request for a Medical Review Panel, there is no need for the Panel to consider this issue, given our decision that the claim is acceptable.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 25th day of June, 1999