Decision #147/08 - Type: Workers Compensation
Preamble
In 2007, the worker filed a claim with the Workers Compensation Board (WCB) claiming that she developed a repetitive strain injury as well as carpal tunnel syndrome (CTS) due to the repetitive nature of her job duties. The claim for compensation was denied by both primary adjudication and Review Office. The worker disagreed and filed an application to appeal through the Worker Advisor Office and a hearing was held on October 1, 2008.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB for multiple injuries that she was attributing to her job duties as a customer service representative. The worker described her injuries as follows:
“Repetitive strain injury up to head - Carpal tunnel injury from my fingertips to my head.
I key and mouse all day long for 7.3 hrs per day. I have 20 minute break and 1 hr for lunch and 20 minutes in the afternoon.
I sit in a chair with a station in front of me. My station is supposed to be ergonomically correct. I am constantly leaning forward. I would prefer a higher station with a keyboard that would come out so I could sit back a little more. I don’t have a lot of support at my shoulders.
I have the mouse at the right side of my keyboard at the same level of my keyboard. I have a gel wrist rest in front of my keyboard. The mouse does not have one.
I do a lot of mousing and a lot keying in on the keyboard. I work 5 days per week and sometimes 6 days in a row.”
The worker advised that she first noticed symptoms within the last six months and that they started to occur at work. It started with aching in her wrists and the bones felt like they were coming out of her skin. It hurt in both forearms and elbows, i.e. throbbing, burning and an aching feeling. It worked its way into her shoulders and neck. She has bad headaches from it. Her hands are numb 75 to 90 percent of the time in the morning. Her arms throb at night and she can’t get back to sleep. She went to see a doctor in June but could not get in to see him until September 2007. The worker advised that her job duties changed as she was trained to do more things. She did more keying now than she did 3 years earlier. The worker advised that she had the same type of injury in 2000 and had a second occurrence in 2003. She had been at her current job for 6.5 years and before that she did typing and keying as an operator.
The employer’s accident report indicated that the date of accident was unknown as this was an accumulative injury. The worker’s injuries were her wrists, forearms, elbows, shoulders and neck. It stated that there were no significant changes to the worker’s job duties in the past year.
On October 4, 2007, the treating physician reported that the worker was a typist and was seen in the office with clinical features suggestive of bilateral CTS as well as tennis elbow. He noted that the worker had been seen by a neurologist and nerve conduction studies confirmed mild CTS. The physician noted that the worker had this problem for the past eight years and had recovered well with acupuncture.
The worker was seen by a physiotherapist on October 3, 2007. Subjective complaints were outlined as aching in hands and numbness at night, sore forearm muscles, shooting pain slightly left more than right. The diagnosis rendered was cervical compression mid cervical spine with a component of forearm disuse and mild carpal tunnel.
The employer provided the WCB with a Physical Demands Analysis for the worker’s position along with a follow-up ergonomic report dated October 5, 2007.
On October 22, 2007, a WCB adjudicator contacted the worker to obtain additional information surrounding her job duties and a description of her symptoms.
In a decision dated October 23, 2007, the WCB advised the worker that her claim for compensation had been denied as the adjudicator was unable to establish a relationship between her work duties and the diagnosis of CTS or tennis elbow. The adjudicator noted that while the worker’s typing on a keyboard may be repetitive, her duties did not involve high repetition and force. It was noted that the worker’s desk set-up appeared to be within ergonomic guidelines in that the joints of her upper extremity were in a fairly neutral alignment. The adjudicator therefore was unable to relate the diagnosis of cervical compression to the activity of sitting at a desk and computer.
On October 30, 2007, the WCB adjudicator noted to the file that she reviewed a letter from the treating physiotherapist who stated that the worker also had a repetitive strain to the forearm muscles of both arms in addition to mild CTS. The adjudicator noted that she was unable to relate the repetitive strain to the worker’s job duties and an accident “arising out of and in the course of” her work duties.
In a submission to Review Office dated November 7, 2007, the worker indicated that both her doctor and physiotherapist felt that the decision to deny her claim was unreasonable. The worker indicated that she had a repetitive strain injury and that this was the third occurrence. She indicated that her prior WCB claims were accepted based on a repetitive strain injury and that the only difference with this occurrence is that she had also been diagnosed with CTS.
A submission was also received from the employer’s advocate dated January 14, 2008. The advocate outlined her position that the adjudicator’s decision was correct and should be upheld by Review Office.
On January 16, 2008, Review Office determined that the worker’s claim was not acceptable. Review Office stated that the worker’s job duties did not involve the anatomical movements required in the development of CTS or lateral epicondylitis. It found that keyboarding, although repetitive, did not involve high force repetitive activity involving motions of the wrists such as twisting, gripping, pulling, pinch pressure and extreme full wrist flexion/extension involving force in a repetitive motion. It also concluded that the worker’s job duties did not result in the overuse of the forearm muscles and do not involve repetitive resisted or forceful wrist extension or impacting motions. It found that the worker’s workstation was within ergonomic guidelines in that her wrists were in a neutral alignment and were not in extreme flexion or extension. With respect to the worker’s contention that her claim should be accepted as her prior claim for bilateral forearm difficulties was accepted in 2000, Review Office indicated that every claim with the WCB was adjudicated on its own merit and that it must meet the definition of an accident as defined in The Workers Compensation Act (the Act). It found that the claim was not acceptable as the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of her employment.
On April 25, 2008 a worker advisor asked Review Office to reconsider its decision based on a report from the treating physician dated April 21, 2008.
In his report dated April 21, 2008, the treating physician noted that the worker had ongoing tenderness over the extensor forearm muscles with a weakening grip as well as extension of both wrists. The worker’s CTS was currently mild and was not the worker’s main problem. Clinically, the worker’s symptoms were related to overuse and repetitive strain injury of the forearms secondary to her working as a typist. The physician indicated that the best possible diagnosis for the worker’s condition was myofascial pain syndrome secondary to a repetitive strain injury. It was felt that the worker’s forearm tendonitis as well as CTS were related to her repetitive movements at work since there was no other cause or trigger that could be found.
On June 19, 2008, Review Office upheld the decision that the claim for compensation was not acceptable. Review Office noted that the worker’s physician did not provide a formal diagnosis and that a claim cannot be accepted on the basis that no other cause of the symptoms had been found. Review Office gave significant weight to the ergonomic assessments which showed that the worker’s workstation was within ergonomic guidelines. On June 27, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing took place on October 1, 2008.
At the hearing held on October 1, 2008, a medical report dated September 16, 2008 was submitted as evidence. After the hearing was adjourned, the employer’s advocate was given an opportunity to review the medical report and provide a final submission to the appeal panel regarding the new evidence if she so wished. On October 10, 2008, the advocate advised the Appeal Commission that she would not be making any further submissions to the appeal panel based on the September 16, 2008 report. On October 17, 2008, the panel met further to discuss the case and rendered its final decision.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. As this appeal deals with claim acceptance, subsections 1(1) and 4(1) are applicable. Subsection 1(1) of the Act defines accident. Subsection 4(1) of the Act provides that where a worker suffers personal injury in a workplace accident, compensation is payable. The issue to be determined on this appeal deals with causation and specifically whether the worker’s injury arose out of and in the course of her employment.
Worker’s Position
The worker was represented at the hearing by a worker advisor who made a presentation on her behalf. The worker answered questions posed by her representative and the panel.
The worker advised that she had a prior claim in 2000 for a repetitive strain injury. She advised that she ultimately returned to work in 2004 but that her symptoms were ongoing and worsened with time. She said that her duties did not change. Regarding her current claim, she said her doctor took her off work from October 4, 2007 to February 8, 2008. She then participated in a graduated return to work but was again taken off work due to her symptoms. Currently she is not working.
The worker said that her symptoms increase every time she participates in a return to work program and this has caused fibromyalgia. She also said that the ergonomic changes made to her workstation don’t assist because her duties are unchanged.
The worker advised that she is seeing a physiatrist who has diagnosed her with epicondylitis, cervical dystonia and fibromyalgia, triggered by the epicondylitis and cervical dystonia. Her current treatments include injections into the myofascial trigger points and massage therapy. With the consent of the employer representative, a medical report from the physiatrist dated September 16, 2008 was accepted as an exhibit.
The worker advised that she has been told that CTS is not an issue at this time.
The worker’s representative submitted that, on a balance of probabilities, there is a causal relationship between her October 23, 2007 claim for bilateral hand, wrist and forearm symptoms and her work duties. She submitted that the worker’s repetitive work duties of keyboarding and mousing are the things that are done and the doing of which triggered the onset of the worker’s bilateral symptoms.
The worker’s representative noted the treating physician’s letter of April 21, 2008 supports the worker’s claim. The physician wrote that the worker’s symptoms are related to over use and repetitive strain injury of the forearms secondary to her work as a typist.
The worker described her job duties in 2007. The worker advised that she worked in a call centre. She described her activity as multitasking. She would speak with clients using a headset and at the same time use a mouse and keyboard to find information and input data. She acknowledged that she uses her right hand when operating a mouse and both hands when entering data. She said that the most data she would enter at one time would be six lines. She would take four to five calls per hour, about 65 calls per day.
The manager confirmed the details of the worker’s job duties as outlined by the worker and indicated that when the worker was working in one particular area she would take 20 to 25 calls per day. The manager also said there could be breaks between calls.
Employer’s Position
The employer was represented by an employer advocate and a manager. The employer representative submitted that a causative relationship cannot be established between the worker’s employment and her bilateral arm condition.
The employer representative noted that the worker’s workstation has been ergonomically assessed in October 2004 and that a physical demands analysis for the worker’s position was completed in May 2006. The position was assessed as sedentary in nature. The employer representative noted that the worker’s workstation set-up has been described as optimum by one of the worker’s physicians.
The employer representative commented that the treating physician’s opinion was speculative as it did not provide objective evidence of a relationship between the worker’s duties and condition.
The employer representative submitted that the fact that the worker’s condition worsened following a period when she was totally absent from the workplace provides support for the position that work duties are not the cause of the problem.
Regarding the information from the physiatrist, the employer representative stated that it appears the current treatment is for a cervical condition and there’s no indication at all that work caused the cervical condition.
Analysis
The issue before the panel is whether the worker’s claim is acceptable. For this appeal to be successful the panel must find, on a balance of probabilities, that the worker suffered a workplace injury within the meaning of subsections 4(1) and 1(1) of the Act. In other words, the panel must determine whether there is a causal relationship between the worker’s employment and her condition.
Early diagnosis of the worker’s condition included CTS and bilateral tennis elbow (lateral epicondylitis). Recently, a physiatrist has referred to the diagnosis as predominantly bilateral lateral epicondylitis, he has also opined that the worker suffers from chronic fibromyalgia syndrome and dystonic paracervical muscles.
In considering these diagnosis and their relation to work, the panel has considered the worker’s job duties. The panel notes the worker works in a call centre and deals with 20 to 25 calls per day when working in one specific area and approximately 65 calls per day when working in another area. She uses her right hand for operating a mouse and enters data with both hands. File information shows the worker’s workstation is within ergonomic guidelines and that her wrists are noted to be in neutral alignment and not in extreme flexion and extension. As well, the job has undergone a physical demands analysis and is described as a sedentary level for work of physical strength. There can be breaks between calls.
CTS
The worker has been diagnosed with CTS. At the hearing she indicated that she has been diagnosed with right handed CTS but that the condition is “...so mild that it wasn’t worth treating.” She advised that acupuncture treatments removed the symptoms of numbness and tingling and also that she has not been at work recently so does not have symptoms.
CTS is defined as the impairment of the motor and/or sensory function of the median nerve as it traverses through the carpal tunnel. It is caused either by intrinsic swelling of the median nerve or by extrinsic compression of the median nerve by one of the many surrounding structures of the wrist. CTS has a variety of causes. It can be caused by underlying systemic conditions such as rheumatoid arthritis, osteoarthritis, hypothyroidism, and diabetes. Middle-aged females, smokers and people genetically pre-disposed to the development of CTS are also at increased risk for the development of CTS. It can also be caused by some work activities. For many cases, the cause is not known.
Occupational factors most commonly accepted to be associated with CTS include a wrist injury, frequent use of vibrating hand tools or any repetitive, forceful motion with the wrist bent, especially when done for prolonged periods without rest. It is generally considered that the greatest frequency of occupationally related CTS is found where job duties involve high force and high repetition.
The panel has carefully considered the worker’s job duties. The panel acknowledges that the work involves some repetition but not in the panel’s view, an excessive amount. The duties do not generally involve awkward positions for sustained or significant periods or forceful movements of the wrist. The panel finds, on a balance of probabilities, that the worker’s job duties have not caused her CTS and that the claim is not acceptable in regards to her CTS.
Lateral Epicondylitis
This condition is frequently caused by overuse of the forearms. It is known to develop from repetitive, resisted or forceful wrist extension or impacting motions.
The panel has considered the worker’s job duties in relation to the diagnosis of bilateral lateral epicondylitis. The panel finds that the duties do not involve high force repetitive activity with motions of the wrist such as twisting, gripping, pulling, pinch pressure and extreme full wrist flexion/extension involving force in a repetitive motion. The job duties do not involve repetitive resisted or forceful wrist extension. While there is repetition, the panel finds there is no evidence the duties involve overuse of the forearms.
The panel is unable to find that the worker’s duties are causative of the worker’s bilateral lateral epicondylitis.
Dystonia and Fibromyalgia
The panel finds, on a balance of probabilities, there is no relationship between the diagnosis of dystonic paracervical muscles (or cervical dystonia as referenced by the worker) and the worker’s employment. The evidence does not establish a relationship between the worker’s job duties and this condition. The evidence does not show that the worker’s job duties caused or aggravated the worker’s dystonia or demonstrate how the duties negatively impact on the worker’s cervical area.
The panel also finds the diagnosis of chronic fibromyalgia is not related to the worker’s job duties. The evidence does not demonstrate or support a causal relationship between the work duties and this condition.
The panel finds, on a balance of probabilities, that the worker’s claim is not acceptable. Accordingly, the worker’s appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 20th day of November, 2008