Decision #30/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for difficulties that she experienced in both hands which she related to her job activities as a data entry clerk. The claim for compensation was denied by primary adjudication and Review Office as both were unable to relate the worker’s diagnosed condition to her specific job duties. The worker disagreed with the decision and an appeal was filed by a union representative to the Appeal Commission. A hearing was held on January 27, 2009, to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
In a Worker’s Report of Injury dated October 6, 2007, the worker reported that both her hands were sore and that her right thumb and left middle finger were swollen. In a further report to the WCB dated November 14, 2007, the worker related her difficulties to her work activities as a data entry clerk. The worker reported that her symptoms in both hands began in approximately May or June 2007 while typing at work and that they increased on September 2007 to the point where she started to miss time from work.
The Employer’s Report of Injury dated November 6, 2007, indicated that they first became aware of the worker’s difficulties on November 1, 2007.
On November 22, 2007, the worker advised a WCB adjudicator that both her hands were sore, especially her right thumb. Her job duties involved using a keyboard with both hands and a mouse with her left hand, telephone work using her right hand to pick up the phone and her left hand to hold the phone and some writing. She mentioned her difficulties to a co-worker on September 19, 2007, and to her supervisor on November 1, 2007.
An x-ray report dated September 26, 2007, of both hands and both wrists indicated “minor degenerative changes are noted in the 2nd carpometacarpal joints bilaterally. No other significant abnormalities are seen.”
The worker sought medical attention on September 27, 2007. The diagnosis provided by the attending physician was arthralgia, not yet diagnosed. On December 4, 2007, the physician’s office advised the WCB that the worker was seen four times in October 2007 and three times in November 2007 and the worker’s diagnosis was bilateral tendinitis.
In a report dated October 17, 2007, a rheumatologist outlined his examination findings and felt that the worker’s symptoms were due to flexor tenosynovitis in the left third and right first digit.
In a decision dated January 24, 2008, the worker was advised that her claim for compensation was denied as the WCB could not establish that her work activities were the cause of her left third finger and right thumb difficulties.
On February 26, 2008, the worker’s union representative asked the WCB to reconsider its decision based on additional information, namely that there was an increase in the worker’s workload at the time she noticed her symptoms.
In a further decision dated February 26, 2008, the WCB case manager acknowledged that the worker’s job duties increased in May 2007 and that her work duties may have been repetitive in nature. However, the case manager was of the view that the activities of keyboarding and general computer usage were not causative for the development of flexor tenosynovitis.
On July 15, 2008, the worker’s union representative appealed the case manager’s decision to Review Office. The union representative commented that there was a dramatic increase in workload as a result of a reduction in staff from 19 down to 4. Shortly afterwards, the worker began to experience symptoms of pain, numbness and swelling and she began self care. It was submitted that the worker sustained an accident at work and that her claim ought to be allowed.
Prior to considering the union representative’s appeal, Review Office contacted the employer on September 10, 2008. The employer confirmed that there was a staff reduction; however, the work done per person dropped as a result of a change in procedures.
On September 22, 2008, Review Office discussed the claim with a WCB medical advisor and documented the following:
“I discussed this claim with Dr. [name] this afternoon. Consensus is that it has not been established whether there was an increase in the worker’s workload as a result of April 2007 change. He considers that doing so is the “crux of the matter.” I advised him that I would obtain more information from the employer.”
The employer provided Review Office with workload statistical data starting in May 2007. This information was provided to the union representative for comment. On October 8, 2008, the union representative spoke with Review Office and the following information was documented:
“[The union representative] is of the opinion that the information provided by the employer does not refute the worker’s position that her workload went up when the staffing complement decreased. [The union representative] does not equate number of claims handled to keystrokes (which is what [WCB medical advisor] focused on) nor did she believe that an average of claims handled per worker is a valid indicator of any one worker’s workload. [The union representative] is of the opinion that the worker’s statement must be accepted over the employer’s and that the claim is acceptable.”
Review Office met with the current working supervisor of the area in which the worker had worked. It was indicated that the workload per individual had decreased “well before May 2007 and continued to do so thereafter.”
On October 27, 2008, the WCB medical advisor stated the following to Review Office:
“Thank you for the recent information provided regarding the amount of load this worker has sustained in her occupation over the last several years. Given your information, that the amount of load has declined, I am unable to make a probable cause effect relationship between the worker’s job duties, and her diagnosis of the tendinopathies in both the hand and wrist. Such tendinopathies are generally considered to be age related, and to consider them related to a particular exposure, one would require either an episode of trauma, or increase in the pattern of loading. Conclusion: At this time, I am unable to establish a probable cause effect relationship between this workers (sic) job as a data entry clerk, and her clinical diagnosis of hand tendinopathies.”
In a decision dated October 29, 2008, Review Office accepted the opinion of the WCB medical advisor as noted above. Review Office felt that the weight of evidence supported that there was no causal relationship between the worker’s employment and her bilateral hand complaints and that the claim was not acceptable. On November 6, 2008, the union representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
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 bilateral flexor tenosynovitis arose out of and in the course of her employment.
Worker’s position
The worker was assisted by a union representative at the hearing. The position advanced on behalf of the worker was that she had a physical injury that was directly related to an increase in her duties and workload during May of 2007. Subsequently, in September 2007, there was another increase in job duties during the week of September 10 to 14. During these time periods, there was an onset of symptoms and an exacerbation of symptoms which clearly coincided with the workload changes in the workplace. It was submitted that this demonstrated a clear nexus between the worker’s job duties and the physical injury which she sustained.
At the hearing, the worker testified that in about May 2007, she started feeling pain, but she continued to work through it. The pain was in her right thumb and her left third finger. The pain was worse on the right than on the left. She had good days and bad days, but the pain would always arise bilaterally, that is to say, when her right hand hurt, so did her left. It was not the case that her right hand would hurt one day, and the next day her left. Over the following months, the pain continued to worsen. She took annual leave for the last two weeks of August and the first week of September. When she returned to work in early September, the worker produced a higher than normal output of work. The individual employee production statistics provided by the employer confirm the increased volume. After maintaining the increased output for one work week, the pain became unbearable and she started missing time from work due to the pain. Effective September 24, 2007, she has been off work. She did attempt a graduated return to work on two occasions in April 2008 and again in May 2008. Each time, she was only able to work for a few hours before her hands became sore and swollen and she had to go home.
The worker gave evidence regarding her duties with the employer. She was a data entry operator who worked full time. She had been performing these duties for many years. There were no concerns with the ergonomic set up of her work station. Her work was all keyboarding, with 90% of her work being numerical and performed on the number pad portion of the keyboard with her right hand. She used her right thumb to depress the spacebar, which was the function she used to move the cursor from field to field on the screen. She used her left hand for alpha entry, and when she typed alphabetic entries, she used all of her fingers to type. There was no particular single function which she used her left 3rd finger to toggle.
Employer’s Position
Two representatives from the employer appeared at the hearing. The position put forward by the employer was that there was no large increase in the amount of work being performed by the staff in the worker’s department. Although the number of staff had been reduced, this coincided with a change in the workload received by the department. It was admitted by the employer that at the time of the initial change, they were unsure as to how many staff they would need, but this did not result in a significant increase in the amount of data entry which was being performed by the worker. The reduction in the overall workload of the department was gradual as all parties were aware of the upcoming changes in procedure many months in advance of the implementation date.
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 find that her bilateral flexor tenosynovitis arose out of and in the course of her work duties. Based on the evidence before us, we are not able to make that finding.
At the hearing, the worker’s union representative placed considerable reliance on the opinion of the WCB medical advisor dated October 27, 2008. In particular, emphasis was placed on the medical advisor’s statement that: “I am unable to make a probable cause effect relationship between the workers (sic) job duties and her diagnosis of the tendinopathies in both the hand and the wrist. Such tendinopathies are generally considered to be age related, and to consider them related to a particular exposure, one would require either an episode of trauma, or increase in the pattern of loading.” The focus of the worker’s submission was establishing that there was in fact an increase in the pattern of loading.
The panel notes that the WCB medical advisor described a diagnosis of tendinopathies in “both the hand and the wrist”. In response to questioning at the hearing, the worker indicated that while the pain radiated up her forearm from her hand to her elbow, the primary source of the pain was her right thumb and left 3rd finger. She denied independent pain in her wrists. This is consistent with the October 17, 2007, letter from the rheumatologist which reports that on physical examination: “wrists are unremarkable.” As the WCB medical advisor was assuming tendinopathies in both the hand and the wrist, the panel is of the view that his October 27, 2008, report cannot be exclusively relied upon to establish the test to be used to determine whether or not the worker’s condition is job related. It will not be sufficient for the panel to simply determine whether or not there was an increase in the pattern of loading. Rather, to decide this appeal, the panel must carefully examine the worker’s job duties to determine whether, on a balance of probabilities, they might have caused the symptoms she experienced in her right thumb and left middle finger.
After considering the evidence as a whole, the panel is of the opinion that the worker’s bilateral flexor tenosynovitis is not causally connected to her work duties. The keyboarding duties being performed by the worker were not of the kind which are typically associated with the onset of flexor tenosynovitis, commonly referred to as “trigger finger”. As the name suggests, trigger finger is typically associated with activities such as operating triggered equipment involving repetitive finger flexion or sustained bending of the distal finger phalanx while the more proximal phalanges are straight. Persons suffering from trigger finger are recommended to avoid repetitive gripping, grasping, placing pressure over the metacarpophalangeal heads and vibration. The keyboarding being performed by the worker did not put her at risk for any of these activities.
The panel also places significance on the fact that the worker’s condition is bilateral and that her pain complaints increased and decreased in tandem, which in itself suggests a non-work related etiology. Further, the worker’s evidence was that the use of her left hand was limited to about 10% of her keyboarding activity. This evidence would not support a finding that there was a significant amount of repetitive work being performed with the worker’s left hand, and in particular, her left 3rd finger, such that a flexor tenosynovitis would be caused.
Based on the foregoing reasons, the panel is unable, on a balance of probabilities, to relate the worker’s bilateral flexor tenosynovitis to the work duties which were being performed by her as a data entry operator. The worker’s appeal is therefore denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 3rd day of March, 2009