Decision #82/08 - Type: Workers Compensation
Preamble
On September 27, 2005, the worker filed a claim with the Workers Compensation Board (“WCB”) for problems she was experiencing with her left arm, left shoulder and both wrists. She attributed the condition to the nature of her work duties which consisted of extensive mousing and typing. Both primary adjudication and Review Office determined that the claim for compensation was not acceptable on the grounds that it was unable to establish a relationship between her condition and an accident occurring at work. Legal counsel, acting on the worker’s behalf, appealed the decision to the Appeal Commission and an oral hearing was arranged.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable for left forearm complaints only.Decision: Unanimous
Background
The worker filed a claim with the WCB for pain in her left forearm, left shoulder and both wrists which she attributed to the repetitive nature of her job duties which consisted of the following activities:
· typing live dictation and using a mouse on a daily basis;
· working 10 hour shifts with a one hour break in the middle;
· some scanning work which involved putting paper on the scanner using her left arm.
The date of accident was recorded as August 4, 2005. The worker indicated on her claim form that she first noticed symptoms about a year and a half ago when they had to really push themselves at work. At first she felt discomfort in her left forearm and gradually it moved to both arms. In June 2005, there was an increase in the workload. The worker had been in her current job since October 1998 and had had left wrist carpal tunnel syndrome surgery a few weeks prior to commencing the position. By August 5, 2005, the worker was unable to work due to the pain and so she reported the injury to her employer.
The employer’s accident report provided the following information: “Over past few years, member claims soreness to arms, wrists, shoulder due to excessive mousing and typing. June 2005 workload significantly increased and has been unable to recover”.
The file contains a Physical Demands Analysis Report dated November 2004 pertaining to the worker’s job position.
Initial medical information consisted of a report from the family physician dated October 28, 2005. The worker had first been seen by a physician at his clinic on August 8, 2005, with what appeared to be a positive Phalen’s test in her left wrist. Nerve conduction studies were arranged as was a referral to a plastic surgeon. The family physician reported that he first saw the worker on August 31, 2005 for numbness and pain in her left arm and right wrist area. She had been off work since August 5, 2005. He noted that the worker was taking medication for the pain and that arrangements were made for her to start physiotherapy treatments to improve the situation. She was seen again on September 14, 2005. Repeat examination revealed mild sensory deficit over the palms of both hands, with no motor function abnormality and normal power and tone. On September 28, 2005, the worker underwent nerve conduction studies which showed mild impairment of the median conduction across the right wrist but sensory criteria on the left side was not met. Repeat examination showed only mild paraesthesia of the right hand and mild pain in the left forearm. It was reported that she was able to cope with activities of daily living, but she claimed she would still not be able to do her regular work. When the worker was last seen on October 21, 2005, she showed no decreased power or tone and normal sensory function to fine touch on both hands and wrists. Phalen and Tinel tests were negative. The physician commented that the worker had an appointment with a plastic surgeon on November 1, 2005.
A report from a physiotherapist showed that the worker was seen on November 1, 2005 with subjective complaints of ongoing chronic regional pain syndrome including the left neck, shoulder and elbow pain. The diagnosis rendered was shoulder rotator cuff strain and tennis elbow.
A WCB medical advisor reviewed the file information at the request of primary adjudication on November 8, 2005. He stated that the diagnosis appeared to be non-specific pain affecting both upper extremities. He also commented that the compilation of physical examination findings and nerve conduction study findings reported by the family physician would suggest that a diagnosis of carpal tunnel syndrome did not apply at this time.
On November 11, 2005, the worker was assessed by another physiotherapist. At that time, the subjective complaints consisted of headaches and left shoulder, elbow and wrist pain and weakness. The physiotherapist’s diagnosis was repetitive use injury of the left shoulder and left wrist. In a subsequent report dated January 15, 2006, the physiotherapist reported that the worker underwent treatment, initially one to two times per week, which decreased to every two weeks by the time of writing the report. It was reported that during treatment, the primary complaints were left greater than right lateral elbow and bilateral shoulder pain. The overall assessment was that the worker presented with mild postural dysfunction as well as chronic shoulder and elbow tendonopathy consistent with prolonged or repetitive activities associated with her work duties.
On November 14, 2005, primary adjudication denied the worker’s claim for compensation on the grounds that it was unable to establish a relationship between her current condition and an accident occurring at work. This was based on the rationale that the worker had been removed from the alleged cause of her symptoms for over 3 months with minimal improvement and that a definitive diagnosis had not yet been made.
In November 2005, the worker commenced a graduated return to work in alternate duties.
On February 13, 2006, a union representative provided the WCB with additional medical reports for consideration to support the position that the worker’s injury was a result of her workplace activities. These included a report by the treating physician, the treating physiotherapist and a massage therapist. The union representative also pointed out that the there had been 68 instances of RSI (repetitive strain injury) reported to the employer since April of 2004.
In a letter to the union representative dated January 18, 2006, the treating physician stated, in part, “…it appears from review of the files that her problems have been specifically related to tendinitis and tenosynovitis of her elbows, wrist and left shoulder specifically. All of these things are certainly related to her work as a typist for [the employer], especially with the number of hours that she was required to be typing on a regular basis and without any rest in between...there is no doubt in my mind that her current symptoms are related to her work in a typing pool of [the employer], and are clearly related to overuse syndrome, and she should be compensated for the same.”
In a decision dated May 16, 2006, a different adjudicator determined that the new information did not alter the decision made on November 14, 2005. The adjudicator indicated that although the treating physician offered the opinion that the worker’s condition was work related, he was only able to provide a general diagnosis of tendonitis or tenosynovitis and had been unable to confirm a definitive diagnosis. Since there was no definitive diagnosis, the adjudicator was unable to establish a relationship between the worker’s job duties and the condition for which she was being treated.
On July 19, 2006, the worker’s union representative submitted to Review Office that the medical opinion provided by the worker’s treating physician was not properly considered. He felt the physician clearly provided a definitive diagnosis and opinion as to the cause of the worker’s injury.
In a Review Office decision dated September 26, 2006, it was confirmed that the worker’s claim for compensation was not acceptable. Review Office agreed with the WCB medical advisor that there was no definitive diagnosis involved in this case and without any clinical objective evidence leading to a definitive diagnosis, any diagnoses provided were basically speculative in nature. Review Office said it had significant concern with the multitude of complaints from the worker from her wrists to her head and was unable to reach a conclusion that, on a balance of probabilities, all of these complaints, which did not significantly improve when the worker was off work, arose through her job duties.
In July, 2007, the worker experienced a worsening of her symptoms. On August 1, 2007, she was assessed by a physiotherapist who noted subjective complaints of left elbow pain that radiated into the upper extremity and forearm. The physiotherapist’s diagnosis was left lateral epicondylitis and left rotator cuff impingement.
On August 24, 2007, the worker was seen by a sports medicine physician who noted a tender lateral epicondyle, tender extensor and full range of motion. He recommended that the worker continue with part time work and maintain restrictions.
On October 12, 2007, the sports medicine physician reported that in addition to the left elbow pain, there was now some left rotator cuff impingement. He recommended that the worker continue with light duties.
On November 9, 2007, the sports medicine physician noted a change in diagnosis and reported epicondylitis bilaterally and rotator cuff tendinosis. Subjective complaints recorded were that the right elbow was now getting sore and that the right shoulder was no better.
On November 28, 2007, legal counsel, acting on the worker’s behalf, filed an appeal of the decision made by Review Office. An oral hearing was then arranged.
Following the hearing, the appeal panel requested that the treating physician provide them with a copy of the worker’s medical chart from August 2005 onwards. This information was later received and forwarded to the interested parties for comment. The panel then met again to discuss the case and render its final decision.
Reasons
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (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 since the time of the worker’s accident report, she has consistently complained of pain in her left forearm and left shoulder. The worker argues that although initially, the possibility of carpal tunnel syndrome was investigated, this was later discounted. The fact that CTS was excluded does not necessarily mean that she was not also suffering from pain in her forearm and shoulder. It was argued that this is, and has always been, a left shoulder/left elbow claim. The medical reports of two physiotherapists dated November 1, 2005 and November 11, 2005, both show that the worker had consistently reported pain in her left arm, including her left shoulder. It was not denied that the treating physician did not address the shoulder in his report of October 28, 2005, but in his later clarification report of January 18, 2006, after a review of the files, the treating physician concluded that the worker had tendonitis and tenosynovitis of the elbow, wrists and left shoulder and expressed no doubt that it was due to overuse syndrome. The worker’s position was that although a definite diagnosis of her condition was not made, the panel does not require a definitive diagnosis in order to find that the claim is acceptable. Notwithstanding that the medical practitioners cannot pin down a specific diagnosis, it can still be said that there was a work related injury. The panel just needs to be satisfied that the injury is work related. Given the evidence of the worker that she was not involved in any extra-curricular hobbies or activities which may have caused the condition, it was open to the panel to find that the worker’s 10 hour shifts in the stressful and demanding work environment caused the injury. It was argued that you just don’t wake up with an injury of this nature.
Employer’s position
A representative of the employer was present at the hearing. The argument forwarded by the employer was that there was an unexplained vacillation of symptomatology reflected in the medical reports and that when the treating physician finally offered a diagnosis of tendonitis and tenosynovitis, he did so with no reference to any objective clinical findings that would support these diagnoses. The employer also noted that the prolonged duration of disability, in and of itself, would tend to call into question the work relatedness of the worker’s problems. The fact that the worker showed little improvement in symptomatology after being off work suggests that work was not the cause. It was also submitted that forearm activities associated with a lateral or medial epicondylitis condition is not consistent with keyboarding. Overall, the employer argued that the totality of medical evidence does not support the necessary nexus between the multiple diagnoses and the duties to which they are being ascribed.
At one point in the hearing, the worker’s legal counsel raised an objection that no notice had been given of the fact that the employer was opposing the appeal. After consideration, the worker chose to withdraw the objection and indicated that she was prepared to proceed with the hearing. She advised the panel that she would not be seeking an adjournment.
Analysis
To accept the worker’s appeal, we must find on a balance of probabilities that she suffered injury by a workplace accident within the meaning of subsection 4(1) of the Act. In order to do so, we must carefully examine the worker’s job duties to determine whether they might have caused her left forearm, left shoulder and bilateral wrist complaints. Based on the evidence before us, we are only able to relate the worker’s left forearm complaints to the job duties.
At the hearing, the worker described the duties she performed while working for the employer. Her job was to receive live dictation over the telephone and enter the information into a computer. She had been employed in this position since October 1998. In April, 2004, a new computer system was installed which caused the workload to become very heavy. The worker described the environment as being stressful, high pressured and there was limited opportunity to take breaks. During each ten hour shift, there was a one-hour lunch break, but if an operator was in the middle of taking a call, the call had to be completed first. Some calls could take up to two hours, and would entail almost continuous keyboarding and mousing throughout the call. The worker’s typing speed was 68 words per minute. The worker was left hand dominant, and while she had originally moused with her left hand, after she began to experience difficulty with pain in her left arm, she switched the mouse to her right hand. The workstation set-up included an adjustable monitor and keyboard, but the chairs had arms on them which prevented the worker from pulling the chair into a comfortable position for typing. As a result, she found herself in a continuous reaching position to access the keyboard.
The initial worker’s accident report outlines the areas of injury to be her left forearm, left shoulder and both wrists. At the hearing, when describing the onset of her symptoms, the worker testified that she first noticed pain in her arms just prior to the implementation of the new computer system. She indicated that: “…My left arm specifically, I guess my forearm is where a lot of it started.” Gradually, her left arm became increasingly painful. The worker had a week off in July and during that time, although her arm was still sore, she was able to obtain some relief by resting it. Unfortunately, as soon as she returned to work, it was as if she never had any time off and her arm once again became very painful. At that point, she had given up most of her hobbies because of the pain. She no longer went bike riding or worked in her garden. By August 5, 2005, she was unable to continue working.
With respect to the complaint of left forearm pain, the panel finds on a balance of probabilities that the worker’s job duties caused, or at minimum aggravated this anatomical area. The increased mousing associated with the new computer system is consistent with the development of muscle soreness in the forearm. According to the treating physician’s medical chart notes, when the worker first attended on August 8, 2005, numbness, tingling and pain in the left forearm was noted, with some numbness and tingling in the right hand. On examinations on August 31 and September 14, 2005, she continued to complain of pain in her left forearm. According to the narrative report of the family physician, by October 3, 2005, repeat examination showed only mild pain in the left forearm. The panel notes that at this point in time, the worker had been off work for two months. In the October 21, 2005 chart notes, the family physician reported normal range of motion, no decreased power, and no tenderness on palpation to any aspect of the arms. This would suggest that by October 21, 2005, the left forearm condition had resolved.
With respect to the complaint of injury to the left shoulder and wrists bilaterally, the panel is not able to relate these conditions to the worker’s specific job dues of 2005. In response to questioning by the panel, the worker testified that when keyboarding, her arms were held relatively close to her body and that the duties did not require her to lift her arms over her head. When demonstrating how she would type, the worker’s wrists appeared to be in a neutral position. We are unable to see how her job duties could have caused trauma to these parts of her body. While there was some reaching involved in the scanning duties performed by the worker, this was a comparatively small part of her job responsibilities and the panel is not prepared to find a causal connection between the scanning and her complaints of shoulder pain.
The panel further notes that despite being off work, the shoulder and elbow conditions progressed rather than resolved. The treating physician’s chart notes do not document complaints regarding the left shoulder until September 14, 2005. Right elbow complaints are first recorded November 14, 2005. According to the second physiotherapist’s report of January 15, 2006, since the worker began treatment there in November, 2006, her primary complaints had been left greater than right lateral elbow and bilateral shoulder pain. Thus, since being off work since August, 2005, the worker’s condition had in fact worsened to now include both elbows and both shoulders.
The more current medical information from 2007 and 2008 indicates that since 2006, the worker has continued to experience persistent bilateral elbow and shoulder pain of varying degree. After her return to work in November 2005, the worker only briefly returned to the live dictation position. She is now employed in a more general office position, which does not require the same type of intensive mousing and keyboarding activity. The medical chart notes of the treating physician reflect reporting by the worker in 2007 of significant workplace stress. The medical chart also indicates that in early 2008, rheumatological investigations were being conducted, although as of March 31, 2008, testing was negative.
Overall, in the panel’s opinion, because of the lack of relationship between the job activity and the anatomical areas affected, the protracted length of recovery, the progression and/or development of symptoms despite being removed from the offending job duties, the variability in symptomatology, and the possibility of systemic involvement, we are unable, on a balance of probabilities, to find that the worker’s continuing difficulties with her shoulders and elbows are causally related to the job duties.
The worker’s appeal is therefore allowed in part.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of July, 2008