Decision #73/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a tendonitis condition that she related to mousing and tabbing on a keyboard that commenced when the employer implemented a new computer system on April 19, 2004. The claim for compensation was denied by primary adjudication as it found that the claim did not meet the definition of an accident as outlined in subsection 1(1) of The Workers Compensation Act (the “Act”). The decision to deny the claim was confirmed by Review Office on the grounds that it was unable to establish a causal connection between the worker’s employment duties and the development of her left sided symptoms. Legal counsel disagreed and filed an appeal with the Appeal Commission. A hearing was then held on May 13, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker claimed that she developed left arm, shoulder, thumb and wrist pain due to tendonitis because of a new computer system that was introduced to the workplace on April 19, 2004. The worker indicated that she first noticed symptoms around May 12, 2004. The worker indicated “We have so many screens that we have to go through in order to do our job. I feel that is what brought it on. There is a lot of mousing and tabbing. I use my left hand for the tabbing and to use the shortcut keys. I use both hands on the keyboard. The workspace has decreased but as the work station, I believe it is ergonomically correct to a certain degree. We have this new system since April 19 and I have had no problems before then. I am keying on the computer for a 10 hour shift. I do a lot of repetitive work.”.

The employer’s report of injury dated June 10, 2004 confirmed that a new computer system was implemented at the workplace that required mousing and tabbing.

On June 3, 2004, the treating chiropractor reported subjective complaints of pain in the worker’s left elbow, hand, forearm, wrist and left hand paresthesia. She also complained of neck stiffness into the left shoulder and right arm soreness. No diagnosis for the worker’s complaints was listed.

On June 22, 2004, the worker sought treatment by a general practitioner and was diagnosed with a bruised left deltoid with possible lateral epicondylitis.

On July 13, 2004, primary adjudication determined that the worker’s claim for compensation was not acceptable. It was felt that the worker’s job duties did not involve anatomical movements consistent with the development of her current diagnosed condition which was a bruised left deltoid with possible lateral epicondylitis.

Subsequent to the decision dated July 13, 2004, further medical information was received which indicated that the worker underwent a bone scan examination on July 28, 2004 and an MRI assessment on August 18, 2004. In addition, WCB staff attended the company’s worksite on July 29 and August 4, 2004 and confirmed that the new computer system involved increased mouse usage in terms of clicks, scrolling and moving windows.

Following a review of the new medical information and the findings of the work site assessment, all interested parties were advised on August 31, 2004 that there was no new evidence to warrant a change in the initial decision to deny the claim.

In a report dated September 10, 2004, the treating chiropractor diagnosed the worker’s condition as a left elbow tendonitis.

The worker underwent an electromyography examination on September 17, 2004 which showed a normal study and there was no definitive evidence of carpal tunnel syndrome on the left side.

A WCB chiropractic advisor was asked to review the file and provide an opinion as to what anatomical movements were consistent with the worker using her left hand to hit certain keys on the keyboard throughout the course of her shift. In a response dated October 4, 2004, the chiropractic consultant noted that the diagnoses on file included CTS, lateral epicondylitis, rotator cuff strain, cervical subluxations and bruising of the left deltoid insertion. He said it was difficult to relate the worker’s left forearm discomfort to the keyboard activity of using the ctrl, tab and alt keys as reported. He felt that the bruising of the worker’s left deltoid was not work related.

A sports medicine physician stated on October 24, 2004 “…it may be decided that the bruising and pain around her deltoid is not work related, this should not necessarily decide that her other symptoms of her lower left arm are not work related. She does do repetitive work and it does appear that her lower arm has suffered a repetitive use injury. The lower arm symptoms were there prior to any of her deltoid symptoms arising. These two areas are not necessarily related and therefore one should not necessarily cause the other not to be covered by Workers Compensation.”

On October 2, 2004, the worker was advised that the her file had been reviewed by a WCB chiropractic consultant and that there was no new information to warrant a change to the initial decision.

In a January 27, 2005 report, an occupational medicine physician stated, in part, “….there is definite association of the onset of new left forearm symptoms consistent with extensor tendonitis and acute muscle overuse that developed within three work shifts using a new computer system. Ergonomically the much greater use of combination keys requires more sustained key pressing such that the finger and thumb and wrist flexors involved, compared to the near-instant release in, e.g., rapid keyboarding. I have noticed this association in other patients with computer related RSIs. She was coached to use the alternate keys as a shortcut, but in hindsight using the mouse to perform the same functions, or a combination of the two options would have led to less overuse…The strain condition is definitely work related, and the employer supports acceptance of the claim by WCB.”

On March 7, 2005, the worker was advised by primary adjudication that the new medical information did not warrant a change to the previous WCB decision.

In a March 29, 2005 report, a physiotherapist indicated that he concurred with the findings of the occupational health physician concerning the change in computer system usage and resultant increase in toggling/keyboard loading led to the worker’s forearm and hand symptoms.

In a submission to Review Office dated June 6, 2005, the union representative maintained that the worker was injured due to the introduction of a new computer program and the employer agreed based on their discussions with the medical professionals in their employ.

Prior to considering the appeal, Review Office asked a WCB orthopedic consultant to review the file and to provide his comments as to a definitive diagnosis of the worker’s condition and whether it was related to her keyboard activities. His response to Review Office is dated August 5, 2005.

In a decision sent on August 8, 2005, Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that the weight of evidence did not lead it to conclude that there was a causal connection between the worker’s employment duties and the development of her left sided symptoms in her non-dominant hand/wrist/forearm/upper arm and shoulder extremity. Review Office stated that it accepted the opinion of the WCB orthopaedic consultant who stated, “…No, we do not (have a definitive diagnosis); in my opinion this has not been established on basis of file review + review of examinations, signs and symptoms. Initial problems sound like no more than fatigue in a non-dominant arm. Initial onset of symptoms too short in time frame for problem to evolve. No better after 6 months off work. No reported evidence of pre-existing condition. All testing negative.” Review Office found the evidence did not establish that the worker sustained personal injury by accident arising out of and in the course of her employment.

On August 25, 2005, the worker’s union representative requested a Medical Review Panel (“MRP”) under subsection 67(4) of The Workers Compensation Act (the “Act”). The request for an MRP was granted and an MRP convened on December 16, 2005. In response to questions posed by primary adjudication, the MRP indicated there were three diagnoses affecting the worker’s left upper extremity. These consisted of non-neurogenic neck pain with diffuse muscular tenderness (a pre-existing condition that was unaffected by the worker’s job duties), myofascial pain involving the left infraspinatous muscle (a pre-existing condition that was unaffected by the worker’s job duties) and radial wrist pain. The MRP further indicated that on a balance of probabilities, the third diagnosis of radial wrist pain was likely a result of the worker’s job duties performed between April and June 2004. It stated the history of repetitive use of the left arm including the wrist with a change in her typing pattern would be sufficient to cause the condition.

On February 22, 2006, the union representative asked Review Office to reconsider its previous decision based on the findings of the MRP which he felt supported the position that the worker’s injury was a direct result of her workplace activities.

In a rebuttal submission dated April 21, 2006, the employer’s representative believed that the MRP’s findings confirmed the position taken by the WCB orthopaedic consultant dated August 5, 2005 and there was no basis to disturb the current position of the WCB.

On April 27, 2006, Review Office confirmed that the worker’s claim for compensation was not acceptable. Review Office stated that the MRP did not provide any clinical findings or a diagnosis that would alter its opinion. It accepted the first two diagnoses rendered by the MRP and noted that the worker did not attribute her neck or shoulder complaints to a work related cause nor were these complaints raised in the worker’s recent submission. It was unable to accept the MRP’s third diagnosis of radial wrist pain as it was neither a clinical diagnosis nor was it based on objective evidence. On July 14, 2006, Review Office confirmed its decision of April 27, 2006.

Review Office considered the case again on April 26, 2007 based on a submission by legal counsel, acting on the union’s behalf. Legal counsel noted that the worker’s claim had not been accepted due to a lack of a diagnosis. It asked Review Office to reconsider its decision in light of two medical reports from a plastic surgeon which outlined diagnoses for the worker’s elbow condition and wrist pain.

In a report dated October 20, 2006, the plastic surgeon indicated that the working diagnosis was tendonitis of the lateral and medial epicondyles of the elbow and there was evidence of a carpal loss on the second carpal metacarpal joint. He stated the worker may have a mild degree of tendonitis in the 1st extensor compartment as well. The worker had pain on the radial aspect of her wrist that could not be explained at this time and further investigations were recommended.

In a second report dated March 2, 2007, the plastic surgeon noted that the worker had evidence of tenderness over both the medial and lateral epicondyles of the left elbow, consistent with epicondylitis. He said it was present at the October 20 examination and was present on December 18, 2006. The surgeon noted that the worker had a degree of mild DeQuervain’s tenosynovitis that was contributing to it. She also had tenderness over the intersection of the 2nd and 3rd extensor compartments, which was consistent with intersection syndrome. There was a small carpal loss present at the base of the 2nd and 3rd metacarpals but this was not contributing to the radial sided wrist pain. He indicated the working diagnosis to explain the wrist pain along with increased carpal bone laxity would be non-dissociative carpal instability. He indicated that the worker’s symptoms were all consistent with an over-use syndrome and that it was very possible that the extra keyboarding with the new computer system could have produced her symptoms.

In its decision dated April 26, 2007, Review Office confirmed that the claim was not acceptable. It stated that the plastic surgeon examined the worker on October 20, 2006, approximately two and a half years post onset of the worker’s symptoms. It felt that the surgeon’s diagnosis of non-dissociative carpal instability noted in his report of March 2, 2007 was contrary to what he reported on his October 20, 2006 examination and was contrary to the opinion expressed by the MRP which stated, “The diagnosis of radial wrist pain is based on the finding of tenderness of the radial aspect of the wrist with no frank ligamentous instability.” It further noted that the MRP found the worker to have radial wrist pain only without a diagnosis. They did not diagnose a tendonitis of one or both medial and lateral epicondyles of the worker’s elbow. It noted that the MRP examination was one year prior to the plastic surgeon’s initial examination of the worker in October 2006. Finally, Review Office noted that the diagnosis referring to the worker’s left elbow made two months after introduction of a new computer system involved specifically the lateral side of the left elbow and there was no involvement of the medial side. On July 12, 2007, legal counsel for the worker filed an application to appeal with the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) 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. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s current medical condition arose out of and in the course of her employment.

Worker’s position

The worker was represented by legal counsel at the hearing. The position advanced on behalf of the worker was that although the worker had performed keyboarding for most of her working life without any problems, a new computer systems instituted by her employer resulted in increased toggling with her left hand. After approximately 19 working days, she developed pain in her forearm and wrist which disabled her from working. Legal counsel argued that although the medical practitioners who have reviewed the worker’s medical condition have been unable to come up with a definitive diagnosis, there is clear cause and effect. From the beginning, the medical reports reference an overuse injury and there was no other explanation other than her work duties for the development of the worker’s symptoms. There is no requirement in the legislation for medical science to have pinned the condition down to a specific diagnosis and it was submitted that on a balance of probabilities, there was a work related injury.

Employer’s position

A representative of the employer was present at the hearing. The argument forwarded by the employer was that the medical reports do not provide a definitive diagnosis and in the absence of same, there is an inability to address the issue of cause and effect. It was submitted that in order to determine whether a specific activity was of causative significance in the development of a specific medical condition, there was a fundamental need to provide a diagnosis. In the absence of a diagnosis, the WCB was unable to determine whether a cause and effect relationship did in fact exist.

It was acknowledged by the employer’s representative that the new computer system was a “proverbial bugaboo” in that it had caused problems and an increased number of claims, but then added that the claims which had been accepted were ones where there was consistency between the increased mousing activity and the diagnosis.

It was also noted by the employer’s representative that the prolonged symptoms exhibited by the worker were not consistent with a repetitive strain injury. Typically, a repetitive strain injury should improve when removed from the activity. Instead, the worker’s symptoms continued for an extended period of time. It was noted that the worker also had non-compensable injuries to her neck and shoulders, and it was suggested that these non-compensable injuries could be responsible for the worker’s lateral epicondylitis symptoms.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that the worker’s disabling medical condition was caused by her employment. We are able to make that finding.

It was noted by legal counsel, and the panel agrees, that adjudication of the worker’s claim has been complicated by the lack of a definitive diagnosis of the worker’s condition. This was compounded by the fact that at the same time that the worker suffered injury to her left shoulder, forearm and wrist, she was also undergoing tests for some discoloration on her shoulder, which had initially been diagnosed by her general practitioner as a bruised left deltoid. The worker testified that it was later determined to be only pigmentation and was completely unrelated to her claim for benefits. The worker also testified that she was involved in a motor vehicle accident in March, 2005, which caused a flare up of her condition with pain in her left forearm down to her wrist and hand. These factors had created additional complexity to the claim.

At the Review Office level and in the employer’s submission, great emphasis is placed on the fact that there is no definitive diagnosis. In the panel’s opinion, however, a definitive diagnosis is not necessary to create entitlement to compensation under the Act. Subsection 4(1) simply requires that there be “personal injury” caused by accident. While the absence of a definitive diagnosis may certainly raise questions as to the etiology of a worker’s medical condition, the lack of a diagnosis in and of itself is not a bar to compensation. If a review of the evidence as a whole supports a conclusion that the worker’s condition is causally related to the employment, then the requirements of subsection 4(1) are met. A definitive diagnosis is only one of the factors which may be considered when making that determination.

On review of the evidence in the present case, the panel relies upon the following to find that the worker’s symptoms of burning, pain and tingling in the forearm, elbow, wrist and hand were causally related to her employment:

  • The fact that the worker’s onset of symptoms occurred contemporaneously with the implementation of a new computer system and a change in the manner in which the worker used her left hand when keyboarding;
  • The repetitive nature of the increased “tabbing” and “toggling” by the worker with her left hand. The worker’s testimony at the hearing was that she had to increase use of her left hand by 60-100 keystrokes per minute;
  • The initial June 2004 reports from the chiropractor, physiotherapist and general practitioner all reflect similar complaints of pain in the left elbow, forearm, wrist and hand;
  • In January, 2006, a Medical Review Panel determined that the worker was suffering from radial wrist pain which was likely a result of her job duties performed between April and June 2004;
  • The Medical Review Panel also opined that the history of repetitive use of the worker’s left arm including the wrist with a change in her typing pattern would be sufficient to cause the condition;
  • The plastic surgeon’s report of March 2, 2007 indicated that “it is very possible” that the new work duties could have produced the worker’s symptoms and that it was not unreasonable that the symptoms could have been produced over 10-12 days working on the system.

There is an opinion from the chiropractic advisor which indicated that based on the information on file, it was difficult to relate the worker’s symptoms to her job duties. The WCB chiropractic advisor then stated that the main concern was the bruising of the left deltoid. Given that the worker’s evidence at the hearing was that there was no bruising and the discoloration was solely due to pigmentation, we place no weight on the WCB chiropractic advisor’s opinion.

There was also a response dated August 5, 2005 from the WCB orthopedic consultant which opined that the initial onset of symptoms was too short in time frame for a problem to evolve. Unfortunately, the response by the orthopedic consultant does not indicate the specific time frame which was considered by him and the information on the WCB file is slightly ambiguous regarding the length of time the worker used the new system. The WCB file indicates that the worker was on the system for three shifts. At the hearing, the worker clarified that this meant three shift cycles of 5 x ten hour days, for a total of approximately 19 days of work (as opposed to 3 days). In view of the foregoing, we are also unable to place weight on this opinion.

Overall, the panel finds that during the course of the worker’s claim, although various names and diagnostic opinions have been ascribed to her condition, what has been consistent throughout is the presence of overuse symptoms of burning, pain and tingling in the worker’s left forearm, elbow, wrist and hand. The panel accepts that an overuse injury could result from the repeated tabbing and toggling which the worker was required to do on the new computer system and we find on a balance of probabilities that the repetitive nature of the worker’s duties did in fact lead to the onset of the worker’s symptoms. It is therefore our decision that the claim is acceptable. The worker’s appeal is allowed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 10th day of June, 2008

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