Decision #155/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (WCB) for right wrist difficulties that he related to his employment activities. The worker’s claim for compensation was denied by primary adjudication and Review Office on the grounds that neither were able to establish a relationship between the worker’s right wrist condition and the nature of his work duties. The worker disagreed and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on October 23, 2008 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On November 7, 2006, the worker alleged that he injured his right wrist from keyboarding and using a mouse on a repetitive basis during his employment as a service representative. The worker indicated that his symptoms started on October 25, 2006 and they continued to get worse. He then stopped working on October 30, 2006 after seeing his doctor. The worker reported that he had been employed with the accident employer for 29 years.
On November 20, 2006, the worker advised a WCB adjudicator that his symptoms started about April 2006. He had minor discomfort in his right wrist and did not think much about it. He did not seek treatment as he thought the discomfort would go away. As it was busier at work in October 2006, his symptoms increased. The worker advised that he worked on a computer all day and did not normally take breaks. He performed strictly typing, mouse and phone work. His symptoms were on the right side and his left side was fine.
In a decision dated November 30, 2006, the worker was advised that his claim for compensation was being denied. The adjudicator noted that the treating physician diagnosed the worker’s condition as flexor carpi ulnaris/tendonitis. The adjudicator stated that this condition/diagnosis can occur idiopathically or by activity such as repetitive forceful movements of the wrists. Following consultation with a WCB medical advisor, the adjudicator determined that the worker’s work duties did not involve the anatomical movements required for the development of this condition. As a result, she was unable to accept the claim or assume responsibility for the worker’s time loss from work or any medical costs associated with his condition.
On April 26, 2007, a worker advisor asked the WCB adjudicator to reconsider her decision of November 30, 2006. She indicated that the worker’s treating physician supported a relationship between the worker’s symptoms and his stated work duties.
On May 7, 2007, the adjudicator confirmed her decision of November 30, 2006. She indicated to the worker advisor that there had been no information provided that suggested the worker’s job duties entailed forceful movements of the wrist.
The worker advisor appealed the adjudicator’s decision to Review Office. In her submission dated May 25, 2007, the worker advisor noted that the treating physician, in his report of May 7, 2007, suggested that the repetitive nature of working on a computer, performing keyboarding and mousing was sufficient for the worker’s condition to develop even without the presence of force. The worker advisor submitted that the case met the WCB’s definition of accident and asked Review Office to rescind the adjudicator’s decision.
On June 25, 2007, the accident employer’s risk management officer concurred with the adjudicator’s decision of November 30, 2006. She noted that the worker spent the majority of his workday in an office setting, mostly on the computer, performing typing, mouse and phone work. There were no activities that would involve forceful movements of the wrist. She noted that the worker, on his worker’s incident report, indicated that he did not report or mention the injury to anyone at the time his symptoms started as he stated, “I did not relate the symptoms to my job”. The employer’s representative indicated that as there was no relationship between the worker’s injury and his workplace duties, the injury cannot be described as having reasonably arisen “out of and in the course” of the worker’s employment.
In a July 5, 2007 decision, Review Office confirmed that the worker’s claim was not acceptable. Review Office noted that the evidence on file supported that the worker’s work duties were repetitive and that the worker’s workload may have increased in October 2006. However, it accepted that tendinosis was a condition that can develop from jobs which include forceful repetitive activity involving motions of the wrist. It found that the worker’s job duties did not involve the anatomical movements required for the development of the condition.
On August 25, 2008, the worker advisor appealed the Review Office’s decision dated July 5, 2007 and a hearing was arranged.
Reasons
Applicable Legislation
In adjudicating this appeal, the panel is bound by The Workers Compensation Act (the Act), regulations and policies of the WCB’s Board of Directors.
As this appeal deals with claim acceptance, subsection 4(1) is applicable. It provides that compensation is payable where a worker is injured by an accident arising out of and in the course of employment. For a claim to be acceptable as an accident, the claim must satisfy the requirements of subsection 1(1) which defines accident. It provides, in part, as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, …
and as a result of which a worker is injured;
Worker’s Position
The worker was represented at the hearing by a worker advisor who made a presentation on his behalf. He answered questions from his representative and the panel.
In answer to questions, the worker provided a detailed description of his job duties, working conditions and physical set-up of his workstation.
The worker advised that his symptoms began in April 2006 but that it was not until November 2006 that he notified the WCB. He did so because his physician advised that his problem was caused by his work. The worker advised that he became busier at work and his symptoms increased. He explained that work duties increased significantly because a co-worker was required to perform other duties outside the office (due to other layoffs outside the office) and he had to cover the co-worker’s job. Responsibility for ordering certain supplies was also added to his duties. He advised that he had to stay at his workstation for the full work day due to the time sensitive nature of the work and often ate lunch at his desk.
The worker advised that after an absence from work, his condition improved but worsened when he returned to work. He advised that his workstation did not have a keyboard tray or a wrist pad for the keyboard and mouse. This caused him to hold his wrist in an awkward position. He asked for an ergonomic assessment of the workstation and advised that once this was completed and changes were made, his condition again improved.
The worker’s representative submitted that the worker’s diagnosis of tendonitis of the flexor carpi ulnaris is related to the worker’s duties. She noted that the worker’s treating physician found a direct cause and effect relationship between the worker’s duties and his symptoms. She also noted that the worker was not involved in any activities outside of work that are causative of tendonitis. She submitted that the worker’s case satisfies the definition of accident, being the thing that is done and the doing of which arises out of and in the course of employment. Alternatively she argued that the worker’s claim is acceptable as an aggravation of a pre-existing condition.
Employer’s Position
The employer was represented by its Risk Management Officer. The employer’s representative noted that the worker was a valued employee of the employer for 31 years but that the employer did not agree that the worker’s condition was caused by his employment. She submitted that the employer does not believe that the noted injury of October 26, 2006 arose out of and in the course of employment. The representative noted that the WCB medical advisor identified two possible diagnoses for the condition, which could either arise idiopathically or could develop from repetitive tasks that involved force. The representative said that as there is no information provided that would suggest that any of the work involves forceful movements of the wrist, the claim should be denied.
When asked by the panel if the employer had any comments on the worker’s description of the job duties and increase in duties, the employer’s representative indicated that it did not.
Analysis
The worker has appealed the WCB decision that his claim is not acceptable. For the appeal of this issue to be successful the panel must find that the worker suffered personal injury by accident arising out of and in the course of his employment, or in other words that the worker’s injury was caused by his employment. The panel finds, on a balance of probabilities, the worker’s right wrist condition was caused by his employment and, accordingly, the worker’s claim is acceptable.
In reaching this decision, the panel attaches significant weight to the worker’s evidence on his job duties and working conditions. The panel notes that the duties involved the continuous use of a mouse and keyboard for a full eight hour shift in a fast paced environment. There was little variety in duties and little opportunity to take breaks from the keyboard and mouse activities. The panel also notes the worker’s evidence that his symptoms worsened as his duties increased and improved when he was away from work. The panel finds that the position of his wrist/arm while using the keyboard was awkward and involved continuous prolonged flexion. Finally, the panel notes that the worker’s symptoms improved when his workstation was modified with a proper tray for keyboard and mouse use.
The worker’s job duties were also considered by his treating physician who opined that there is a relationship between the worker’s job duties and his right wrist condition. The panel accepts this opinion.
The claim is acceptable and the appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 3rd day of December, 2008