The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal essentially deals with the cause of the worker's musculoskeletal symptoms.

On May 28, 2004, the worker filed a claim for thoracic and cervical strain which she related to her workstation and increased work duties. Her claim was accepted but benefits ended on December 10, 2004 as the Workers Compensation Board (the "WCB") took the position that the worker suffered from a pre-existing condition of fibromyalgia and/or myofascial pain syndrome and that she had simply suffered a short-term aggravation of this condition.

This position was upheld by the Review Office in a decision dated February 16, 2006. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on June 20, 2006. The worker appeared and provided evidence. She was represented by a worker advisor.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond December 10, 2004.

Decision

That the worker is entitled to wage loss benefits and services beyond December 10, 2004.

Decision: Unanimous

Background

Reasons

Background

Work history
The worker was employed as finance officer with the accident employer since 1995. Her work hours and duties have increased since that time. Her workstation, to which she attributes her symptoms, has also undergone modification.

In 1995, the worker was employed .5 time, which essentially worked out to 3 days one week, and 2 days the next week. At that time, she was doing the accounting for one personal care home.

Over time, her hours were increased to .6 time and she was responsible for the accounting for 3 personal care homes.

Then, in about 1999, her hours were increased to .8 time. Her work load also increased due to a reduction in the number of administrators.

The worker's normal hours are increased during audit time which is from mid March to mid June.

Workstation
The job duties of a finance officer are sedentary in nature. The work is done at a workstation with the use of a computer and calculator.

The worker testified that initially her computer was located on the left corner of the desk, with her mouse and calculator to her right. The chair was a pee pad chair with essentially a small back and seat with no arm rests or lumbar support.

In 2002 the monitor was moved to the centre of her desk and in 2004 she received a new chair. The worker stated that the new chair caused increased problems because she was stationed further away from her desk and therefore had to reach further in front to access the mouse and adding machine.

In 2005, her chair was raised, her keyboard tray removed, and her keyboard placed on the desk.

Symptoms and Treatment
In about the spring of 1999 during the audit season, the worker began to experience neck and upper back discomfort that would come on at the end of her workday. The discomfort increased in 2002 and she sought medical treatment.

The medical reports on file indicate that x-rays and CT scans of the worker's cervical and lumbar spine were normal. She was referred to sports medicine specialists who opined that the worker was suffering from chronic neck and shoulder girdle pain. She was referred to a physiotherapist and prescribed a home exercise program.

When the worker's symptoms still did not abate, she filed a claim with the Workers Compensation Board (hereafter "WCB") on May 28, 2004. Her accident report indicates that she was suffering from chronic muscle spasm and pain in her upper back and neck as a result of constantly sitting in the same position and poor ergonomics.

Her family physician supported her claim by stating that her symptoms appeared work-related as when she is placed off work her symptoms subside but return within a short period of time upon return.

The worker's claim for compensation was accepted based on the diagnosis of a cervical and thoracic sprain due to poor ergonomic set-up of the workstation in combination with increased work hours.

On July 8, 2004, she received a new chair after an ergonomic assessment of her work site. Though at first the chair helped her symptoms, the relief was short-lived. She continued symptomatic and then went on holidays. Her symptoms still did not subside. She returned to work but then went off in September 2004 as a result of increased neck and shoulder stiffness and pain.

The worker's file was reviewed by a WCB medical advisor. A November 3, 2004 memorandum to file outlines the medical advisor's opinion. In particular, it states:

"…Given the sedentary nature of her work, it's difficult to relate such severe symptoms to work duties. It is much more likely that she has pre-x [myofascial pain syndrome] that is temporarily aggravated from time to time by her work duties. It would be expected that flare ups could be related to work at time of [increased] work or [increased] time at work. I expect her paperwork for the farm is likewise sedentary & if her work @ the hospital is considered a cause of flare ups then so too could that work be considered a cause…Periods of time loss should be reviewed to see if they are related to increased workloads prior to which would suggest a work related aggravation."

Still symptomatic, the worker was referred to a neurologist on November 30, 2004 who found no neurologic abnormalities. He did however find multiple triggers points in her neck, arms, legs and paraspinal muscles. He offered that these symptoms were consistent with fibromyalgia.

Then on December 3, 2004, the WCB informed the worker that her wage loss benefits would cease on December 10, 2004 inclusive and final as it was felt that the worker suffered an aggravation to her pre-existing neck and back condition on May 28, 2004 and that it had resolved.

Still without relief, the worker attended a doctor in Saskatchewan who referred her on for trigger point injections. The December, 2004 letter of referral states:

"Thank you for seeing this patient regarding chronic myofascial pain. She's seen numerous people as outlined in her correspondence. I'm hoping for your opinion regarding trigger point therapy. I realize her complaints are diffusely spread but it's her upper back that is so bad. ? can you help her with trigger point therapy aimed at upper back/neck…"

The trigger point injections were done on the worker in January, 2005. It was the worker's evidence that the trigger point injections helped loosen her upper back. With subsequent chiropractic treatment, remedial massage therapy and home exercise, she was able to commence a gradual return to work in May, 2005 and return to her regular work hours by mid- August, 2005. The worker testified that although her symptoms were better, the return to work began aggravating them again. It was not until September, 2005 that her workstation was reevaluated and changes were made. The keyboard tray was removed enabling her chair to rise higher and reduce the right arm lifting and forward reaching to operate the calculator and mouse. It was her evidence that this last modification allowed her to feel less strain in the shoulder and neck.

An excerpt from the transcript of June 20, 2006 hearing reads:

p. 16: "…And that made a huge, huge difference. I couldn't believe it. I went from struggling to - I was working a .8 all the way up to I think it was about November and from November, 2005 until just now I've been working full-time and there's been actually a stretch through my audit season, in a five-week period I put in 63 hours of overtime on top of working my full-time hours. So the difference has been phenomenal."

The worker also attended a Stretch, Massage, Breathe program which taught her exercises to correct shoulder elevation and forward rounding. She testified that while she still gets the occasional symptom, she is able to stretch it out.

Medical Opinions on Causation
The worker's file was reviewed by a physical medicine and rehabilitation consultant to the WCB on February 7, 2006 with respect to the set-up of the worker's workstation. The following information was provided to him:

"The worker…was seated low to access the under desk mounted keyboard tray & had to stretch up & reach out to the mouse on the desktop to the right of the keyboard. The calculator was also on desktop to the right of the mouse. The monitor was too low & the worker had to bend head down to view. Since changes were made, [employer] advised that [the worker] has been doing much better. She still has pain complaints but does her stretches regularly."

The physical medicine and rehabilitation consultant's opinion was as follows:

"…While there appears to be some workstation ergonomic deficiencies, they appear to be minor and should be able to be easily corrected. (I note a number of changes have been made.)…

1. The current file does not identify a specific diagnosis to explain the claimant's symptomatic complaints related to the reported incident of May 28, 2004. I suspect on a balance of probabilities the claimant's reported subjective symptoms are related to her pre-existing condition rather than related to any part time work incident.
2. There is no scientific evidence that the subjective diffuse sensitivity to pressure is caused by any work factor, and no evidence that this was caused by the minor ergonomic deficiencies of her workstation. I cannot rule out a minor contribution to symptoms related to the workstation problems.
3. The scientific literature suggests that the pre-existing condition responds to physical activity and with progressing in a graduated fashion to regular aerobic fitness activity.
4. I would not suspect the presence of any workplace related condition to be present. I would suggest that abilities should have been present for the claimant to have remained at work, at her usual part time sedentary hours."

The physical medicine and rehabilitation consultant to the WCB appears to find that the worker had a pre-existing condition of chronic muscular neck pain and shoulder girdle pain after a whiplash injury while skiing. At the hearing, the worker explained that she took a tumble while skiing when she was about 17 years old. She had some chiropractic treatment without any further treatment or symptoms.

This opinion is to be contrasted with the opinion of an ergonomic consultant, who wrote a report dated June 13, 2006:

"There is an association between the previous workstation design and job demands that occur in this task and the neck and shoulder issues that [the worker] is experiencing. The main cause is the forward reaching while sitting at a low height. These and other ergonomic hazards are present in sufficient exposure to be related to [the worker's] injuries.

 

Issue	Explanation
Previous Workstation
Strain on the shoulder, neck, upper back and hand due to:
1) Monitor in the corner of the desk	Viewing the monitor in the corner lengthens and strains the muscles of the neck and right shoulder area. This position is related to muscle soreness and discomfort.
2) Documents on the desk	Continuous viewing of documents on the flat desk results in bending the neck forwards and is related to upper back and neck muscle soreness and discomfort.
3) Keyboard tray is too low and no room for the mouse	A low keyboard tray resulted in sitting low in the chair. There was not enough room for the mouse therefore it was placed on the desk. This resulted in a poor shoulder position to reach for the mouse. The shrugging of the shoulder and 'wining' (sic) out of the elbow places the shoulder joint in a position where mechanical strain can cause wear and tear to the area. This position can result in muscle fatigue and tendonitis of the supraspinatus muscle. This also occurs when using the calculator…
Current Workstation
6) The chair's armrests do not allow for an easy reach for the mouse or calculator	The chair's armrests provide support for the forearm however they do not fit under the desk. Therefore the worker is sitting away form (sic) the desk and a reach is required to use the mouse and calculator. This results in a poor shoulder position and can re-aggravate the existing/previous problem."

Worker's Position

The worker denies that she suffered from a pre-existing condition and takes the position that her thoracic and cervical muscular strain is related to her workstation.

Analysis

To accept the worker's appeal we must find that her symptoms arise out of and in the course of her employment, namely as a result of her workstation, and that these symptoms had not resolved by December 10, 2004. We are able to make that finding.

Subsection 4(1) of The Workers Compensation Act (the "Act") provides that to be compensable, a worker must suffer personal injury by accident arising out of and in the course of employment. Subsection 1(1) of the Act defines an accident as a chance event occasioned by a physical or natural cause, including any event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment.

The diagnosis
In the case before us, the evidence is that the worker suffered from musculoskeletal symptoms in and around 1999 when her job duties and work hours increased. With time, these symptoms continued to increase until the point in 2004 when she could no longer release the tightness in her muscles. The tight cervical and thoracic muscles were causing additional symptoms in her body.

Various labels have been used to describe the worker's symptoms, namely fibromyalgia and myofascial pain syndrome. These labels appear to find their source in the worker's unabating and worsening symptoms. However, we can not find any clinical examinations which would support these labels.

The initial diagnosis of the worker's symptoms was cervical and thoracic strain. This was the diagnosis accepted by the WCB. It is also the diagnosis of the doctor in Saskatchewan (though she uses the term myofascial pain) who referred her for the trigger points injections which ultimately put the worker on the path to resolution of her symptoms. We therefore find on a balance of probabilities that the worker did suffer from a cervico-thoracic strain.

The relationship to her workplace duties
We also accept the claimant's position that her symptoms were caused by her improperly designed workstation. We rely on the ergonomic consultant's June 13, 2006 report as well as the worker's evidence that her symptoms improved each time her workstation was modified to be more ergonomically appropriate.

The recovery
We also accept that the worker was not able to gradually return to work until May, 2005, resuming regular duties in August, 2005. Though the worker testified that she still continues with some symptoms, we understand that she is able to utilize stretching techniques and still continue with her regular duties.

Consequently, we find that the worker is entitled to benefits beyond December 10, 2004 until she resumed regular duties in August, 2005.

Accordingly, the worker's appeal is accepted.

Panel Members

L. Martin, Presiding Officer
R. Koslowsky, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of July, 2006