Decision #88/10 - Type: Workers Compensation
Preamble
This appeal deals with two compensation claims filed by the worker. The first claim filed on April 17, 2008 was accepted based on a diagnosis of epicondylitis and benefits were paid to July 2008. The second claim filed by the worker on February 6, 2009, related to a recurrence of symptoms which she felt was a continuation of her previous claim. It was subsequently determined by Review Office that the worker was not entitled to benefits beyond February 2009 on her April 17, 2008 claim and that the worker’s second claim for compensation was not acceptable as Review Office was unable to establish that the worker’s diagnosed epicondylitis arose from an injury arising out of and in the course of her employment. A hearing was held on July 6, 2010 to consider these matters.Issue
Claim No. 0804 4983:
Whether or not the claim is acceptable.
Claim No. 0804 1350:
Whether or not the worker is entitled to benefits beyond February 9, 2009.
Decision
Claim No. 0804 4983:
That the claim is not acceptable.
Claim No. 0804 1350:
That the worker is not entitled to benefits beyond February 9, 2009.
Decision: Unanimous
Background
On April 17, 2008, the worker filed a claim with the WCB for right arm, right elbow and right shoulder difficulties that she related to her daily work activities on a computer and using a mouse with her right hand. The worker reported that the onset of her symptoms began around November or December 2007 and that it started to affect her work on January 2, 2008. She first had soreness in her lower arm and then pain in her elbow. The pain would occur when she pushed down or reached out with her arm.
On March 14, 2008, the worker was diagnosed with acute right lateral tendinosis and physiotherapy treatment was recommended. The claim for compensation was accepted based on the diagnosis of right lateral epicondylitis.
A discharge physiotherapy report dated July 29, 2008 indicated that the worker had full range of motion in her elbow/wrist. There was some pain with resisted wrist extension, grip strength was 36 kg. with slight soreness and tenderness at the lateral epicondyle. The physiotherapist indicated that the worker’s condition had mostly resolved.
On October 23, 2008, the WCB advised the worker that since she was working her full job duties and last attended for physiotherapy treatment in July 2008, her claim with the WCB would become inactive.
On January 23, 2009, the worker left a voice message with a WCB case manager stating that she was experiencing a recurrence of symptoms and had an appointment with a physiotherapist. In a subsequent telephone conversation with the WCB case manager on February 18, the worker indicated that since her previous injury, it would hurt a little and she would just take breaks. After her treatment was finished, she felt really good. She did not seek any medical treatment nor make any complaints at work since her discharge from treatment. In December 2008, she started to feel pain again and she was doing the same type of activities as she was doing previously and therefore thought she would use her same claim. The case manager advised the worker “…it would be hard to accept an ongoing relationship and if she wished she should file a new claim.”
On February 6, 2009, the worker filed a new claim with the WCB for right arm and shoulder difficulties that she related to her daily work duties on a computer which involved keyboard and mouse use. The worker advised that she first noticed symptoms during the last week of December 2008 while at work and when she awoke in the morning. The pain was in her upper arm with certain movements, soreness in her elbow and sharp or shooting pains.
A physiotherapy report dated February 6, 2009 diagnosed the worker’s condition as right lateral epicondylitis and right rotator cuff tendonitis.
On February 12, 2009, the worker advised the WCB that her job involved policy writing and researching on the internet. She spent most of the day doing a combination of typing and mouse work. She spent about 50% of computer time using a mouse. She placed her thumb on the side of the mouse, she used her second and third fingers to push buttons on the mouse and then placed her fourth and fifth fingers on the outside of the mouse. She used the mouse to find sites on the internet and to cut, paste and edit. When not using the computer, the worker attended meetings, an average one meeting per day. If she was required to take minutes at the meeting, she would use a lap top. The worker indicated that she started her current position four years ago. Prior to that, she managed a service area which did not require her to use a computer much. The worker indicated there were no recent changes to her job duties or to her work station.
In a decision dated February 13, 2009, the worker was advised that the WCB was not accepting responsibility for her claim filed on February 6, 2009. The adjudicator noted that epicondylitis and rotator cuff tendonitis can develop from both work and non work related factors. She noted that epicondylitis was found where the job duties involved repeated contraction of the forearm muscles. Tendonitis occurred in people who frequently performed overhead activities. It was concluded that a relationship could not be established between the worker’s job duties and the development of right lateral epicondylitis and right rotator cuff tendonitis.
A doctor’s progress report dated March 10, 2009, indicated that the worker was seen one year prior. He noted that the area of injury was the right elbow and right cuff strain (shoulder) and that the worker was referred to a physiotherapist.
On June 30, 2009, a worker advisor asked the WCB to reconsider its February 13, 2009 decision on the grounds that the worker’s right elbow tendinosis and epicondylitis combination was an aggravation of a pre-existing condition. In support of this position, the worker advisor referred to the following opinion expressed by the worker’s treating physician in a report dated June 9, 2009:
This condition is typically a result of a chronic low level overuse strain syndrome. If she was indeed at work during a time when she was required to be using a lot of mouse activity or computer keyboard activity, this would be in keeping with the mechanism for aggravating her elbow pain on the right side. With respect to her right elbow, I do believe she had symptoms that would be considered an aggravation of her pre-existing condition from approximately one year prior.
The file was reviewed by a WCB medical advisor on July 10, 2009. He stated:
…Epicondylosis is in fact more typically recognized to be provoked by a combination of repetitive and forceful wrist movements, and not by the low force in repetitive hand and finger movements required in typing and mouse usage. On balance, the reported work duties would be unlikely to provoke epicondylosis or a recurrence/aggravation of such a condition if it existed prior.
In summary, the combination of forceful and repetitive wrist movements typically recognized as being provocative of lateral epicondylosis do not appear to be a feature of [the worker’s] job duties and on this basis a work related cause for her reported recurrence is not apparent.
On July 13, 2009, the worker was advised that in the opinion of the WCB, her right lateral epicondylitis injury had essentially resolved by July 2008. The worker was advised that the information provided by the worker advisor did not warrant a change to the initial decision. The WCB remained of the view that a relationship between the development of her neck and elbow symptoms for which she received medical care in February 2009 and her employment activities had not been established.
On July 20, 2009, the worker advisor appealed the decision to Review Office. The worker advisor submitted that the aggravation referred to by the treating physician on June 9, 2009 met the criteria for acceptance as a recurrence. It was felt that the worker’s difficulties were related to her previous workplace injury of January 2008 as the evidence supported that there were no reported changes to the workload, work schedule or workstation. The method of injury and diagnosis remained consistent with the January 2008 workplace injury. The worker advisor stated “In any case, whether or not the Review Office concludes that [the worker’s] entitlement to medical aid beyond February 6, 2009 is related to a recurrence of claim [filed on April 2008] or a new accident as in claim [filed on February 9, 2009], it is the position of the Worker Advisor Office that [the worker’s] condition is related to her work activities which resulted in her requiring physiotherapy appointments.”
With respect to the worker’s claim filed on April 18, 2008, Review Office determined on September 1, 2009, that there was no entitlement to benefits beyond February 9, 2009. Review Office indicated that it could not make a finding that the worker’s recurrence of problems with her right arm was related to the claim made on April 18, 2008 (for difficulties commencing January 2, 2008). Review Office noted that the worker last attended for medical treatment of the January 2, 2008 injury on July 25, 2008. Her symptoms at that time had mostly resolved. The worker continued with her regular work duties from that point forward with no further medical care, no mention to the employer or co-workers that she was experiencing continuing problems and no contact with the WCB until February 2009 when she sought medical treatment.
After reviewing all the evidence, Review Office was unable to establish a relationship between the worker’s right shoulder, elbow and arm condition, last treated in July 2008, with the new onset of symptoms in December 2008. On a balance of probabilities, Review Office felt the evidence supported that the worker’s condition had resolved by July 2008 when she last attended for medical treatment.
On September 1, 2009, Review Office confirmed that the worker’s claim filed on February 9, 2009 was not acceptable. In making its decision, Review Office relied on the medical opinion expressed by a WCB medical advisor on July 10, 2009 that the work duties performed by the worker would be unlikely to provoke lateral epicondylitis.
On November 9, 2009, the worker advisor appealed the decisions made by Review Office to the Appeal Commission and an oral hearing was held on July 6, 2010.
Following the hearing, the appeal panel requested additional information from the worker's employer as well as her treating physiotherapist. The requested information was later received and forwarded to the interested parties for comment. On August 27, 2010, the panel met further to discuss the case and render its final decisions.
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 right lateral epicondylitis and tendinosis is related to her employment, either as a recurrence of an earlier WCB claim or as a new injury.
Worker’s position
The worker was assisted by a worker advisor at the hearing. The position advanced on behalf of the worker was that the evidence established a relationship between the worker's job duties and her right lateral epicondylitis. The treating physician's report of June 9, 2009 found symptoms that would support an aggravation of the worker's pre-existing condition from approximately one year prior. There was no other evidence to suggest that the worker was engaged in activities outside of work that would have caused her elbow epicondylitis. The physician's report provided evidence that the worker's employment contributed to a worsening of her pre-existing condition.
It was further submitted that the evidence also supported that the workplace duties were responsible for the worker's right arm condition for which she had a previously accepted WCB claim. The worker should be entitled to further benefits as the need arose on the first claim.
At the hearing, the worker advisor advised the panel that the appeal was limited to acceptance of responsibility for the worker’s right elbow symptoms. The worker was not arguing that her right rotator cuff symptoms were caused by her workplace duties, as it was acknowledged that the report of the treating physician did not support such a relationship.
At the hearing, the worker gave detailed evidence regarding her job duties. The worker’s title was a program policy specialist. She had been employed for many years by the same employer as an administrator and in December 2004 she took on a new role as a program policy specialist. Her new position involved spending most of her work day on a computer gathering information regarding policies, then using that information to create draft policies for review by the executives of the employer. She would make extensive use of the mouse by clicking from website to website and by cutting and pasting information. The worker would prepare three progressive drafts of each policy, to be reviewed and revised before a final policy was agreed upon. Aside from days when she had meetings, the worker worked most of the day on her computer in her office, with the support of an administrative assistant.
When the worker first started the position in December, 2004, she worked on a laptop computer which was placed on her desk. For a period of time, the mouse was placed on the table beside the laptop, and when she used the mouse, she rested the mid-part of her forearm against the edge of the desk. Subsequently, a docking station for her laptop with a pull-out tray containing a keyboard and mouse was added. The worker could not recall when these adjustments were added, but believed it occurred after an ergonomic assessment was conducted by the employer. After the hearing, the panel obtained a copy of the employer's ergonomic assessment. It was completed on August 22, 2006 and identified issues with the workstation that could increase strain on the forearm, wrists and neck. The main issues involved the leaning of the arms on the edge of the desk and the low monitor height. Recommendations for improvement were to purchase a keyboard tray, an external keyboard and a footrest.
Other issues the worker identified with her workstation were the fact that her mouse was not ergonomic, and that her chair did not maintain a proper height; therefore she sat too low and her arm was at an improper angle. The chair was not replaced until approximately the spring of 2010.
With respect to the onset of her right arm difficulties, the worker’s evidence was that by the end of her first round of physiotherapy in July, 2008, she no longer had pain, but was still susceptible to symptoms if she overused her arm, for example, if she worked too long without taking a break. Her recollections were not clear as to when the symptoms began to recur, but she thought that she did not wait long before she returned to physiotherapy for treatment. After the hearing, the panel obtained further information from the treating physiotherapy clinic, which indicated that the worker presented for initial assessment on February 3, 2009. The clinic reported that the worker: "Complained of right shoulder, upper arm and elbow pain right from her first visit on February 3, 2009. She was diagnosed with right rotator cuff tendonitis and right lateral epicondylitis based on her findings that day. Symptoms decreased with treatment … Both subjective and objective progress was noted over the course of her treatments."
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 right lateral epicondylitis/tendinosis was caused by her employment, either as a recurrence of her earlier January 2008 WCB claim or as a new injury. We are not able to make that finding.
With respect to the worker's first WCB claim for symptoms starting in January 2008, we find that the evidence does not support an unresolved condition from which she then suffered a recurrence. The physiotherapy discharge report dated July 29, 2008 indicated that the worker's condition had mostly resolved by that time. There was only some pain with resisted wrist extension and slight soreness and tenderness at the lateral epicondyle with gripping. There was no record of any further complaints by the worker until 6 months later, in February 2009. The worker's own evidence was that she was not feeling many symptoms after she was discharged from physiotherapy in July 2008.
Through the period August 2008 to February 2009, the worker continued to perform her same full time job duties. She continued to spend most of her days working on the computer. It is notable that by this time, her workstation had been modified and a keyboard tray and docking station were installed. She was no longer required to rest her arms against the edge of the desk. This is in contrast to the period leading up to her January 2008 claim where her workstation was identified as having issues that could increase strain on the forearm, wrists and neck.
Given the lack of symptoms for approximately six months and the fact that she continued to work long hours on the computer in an improved workstation environment, the panel is not satisfied that the symptoms which the worker began to experience in December 2008 were a recurrence of her January 2008 injury. If the work duties were aggravating a pre-existing condition, the panel would have expected the worker to have experienced symptoms earlier. We therefore find that the worker's April 2008 claim had resolved and her symptoms which manifested in December 2008 were not a recurrence of the previous injury. She is therefore not entitled to benefits beyond February 9, 2009 in respect of that claim.
With respect to the whether the worker's December 2008 symptoms are acceptable as a new WCB claim, the panel finds that the claim is not acceptable. We are not satisfied on a balance of probabilities that the job duties being performed by the worker were the cause of her complaints at that time. The keyboarding and mousing being performed by the worker are not the type of activity which is typically associated with the development of lateral epicondylitis/tendinosis. The worker's computer use was varied and at times she would be researching on the internet, while at other times she would be cutting and pasting information and editing. Her work did not involve the high repetition and forceful wrist movements which we would expect to see. It is notable that the worker's job was self-paced, so there was no immediate pressure or deadline to complete a defined amount of work in a single day.
The panel also notes that the worker's initial intake complaints to the physiotherapist on February 3, 2009 consisted of: "right shoulder, upper arm, and elbow pain." Unlike with her earlier WCB claim for lateral epicondylitis, the worker's complaints did not include forearm and wrist pain. The complaints appeared to be focused on the elbow up to the shoulder, rather than from the elbow down to the wrist, which characterized her earlier claim.
There also remains the question regarding the etiology of the worker's rotator cuff tendonitis, which manifested at the same time as the second episode of right elbow pain. The June 9, 2009 report of the treating physician declines to find any relationship between the rotator cuff strain and the worker's sedentary desk job function. The fact that both conditions appeared simultaneously suggests that they may both have been caused by the same unknown etiology.
Overall, the panel feels that there is insufficient evidence to convince us on a balance of probabilities that the worker's second episode of right lateral epicondylitis/tendonitis was causally related to her workplace duties. We therefore find that her claim is not acceptable. The worker's appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 16th day of September, 2010