Decision #29/11 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the weight of evidence did not establish that the worker suffered a personal injury by an accident arising out of and in the course of her employment as defined under the Government Employees Compensation Act ("GECA"). The worker disagreed with the decision and an appeal was filed with the Appeal Commission through her union representative.

A hearing was held on February 3, 2011 to consider the matter.

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 right leg, hip and low back complaints that she related to being moved to a new desk that was not ergonomically correct for her pre-existing medical conditions on December 21, 2009.

Information obtained from the employer was that the worker was relocated to a different work station on December 21, 2009 to accommodate her request to be moved away from a persistent draft that she said was aggravating a pre-existing condition. The new work station was adjusted to meet the specifications of an existing desk assessment. The worker occupied the second work station from December 21 to 24, 2009 inclusive and January 4 to January 7 inclusive. At the second work station, the worker indicated that her chair was too high for her feet to touch the floor and that the two footrests she used were too low. The worker used an overturned plastic tub to rest her feet on and was observed moving from the keyboard area of the desk to the work surface area of the desk by pushing on the tub with her right foot. On January 8, 2010, the worker was relocated to a third work station. This work station was adjusted to meet the specifications of the desk assessment. The worker was pleased with and comfortable at the third work station. On January 11, 2010, the worker indicated that she was going to file a WCB claim for injury to her right leg, hip and low back from working at the second work station.

The chiropractor's first report dated January 11, 2010 noted that the worker hurt her back and right hip/leg at a new work station. The diagnosis was sacroiliac strain/sprain with lateral femoral cutaneous pain syndrome.

On January 26, 2010, the worker advised the WCB that her symptoms first started on December 22, 2009 when she tried to stand and walk and had pain in her entire right knee. The pain moved into the right hip on December 23, 2009 when she tried to wheel her chair back and forward to do her work. The second workstation was V shaped. The keyboard was at the point of the V and there was a work area to the left and right of the keyboard. She would do the written work on the left hand side of the desk. She would sit in the aisle way when she would do this work as there was not enough room in her work area. She constantly goes from the computer to the work area to write information.

The worker indicated that the chair she used was on wheels. The employer provided a mat for the chair but the mat did not cover the entire workstation floor. The wheel on the chair kept getting stuck in the tile on the floor. She would use her tip toe to move the chair within the work area as the chair was raised. She did not use her left leg as she fractured this leg many years ago and now had osteoarthritis in the left knee. The worker indicated that the chair she used at the second workstation was the same chair she used from the previous workstation. The chair was an adjustable ergonomically correct chair that was specifically purchased for the worker back in 2002. The worker communicated to her supervisor that she was having problems with her workstation but did not specifically mention her knee and hip difficulties.

The worker said she reported her knee and hip difficulties to the union representative on December 23, 2010. He took measurements of the previous desk she worked at and the new desk on December 22 or 23. The worker's height is 5'3".

On February 14, 2010, the worker wrote to the WCB and provided additional information related to the modifications that were made to her work station on December 21, 2009. The worker indicated that she began working on the new desk December 22, 2009 and noticed pain in her right knee when she went out at lunch time. The pain increased, radiating down to her foot and up to her right hip throughout the day and next day. When she left work on December 23, 2009 the pain was radiating to her low back as well.

On April 21, 2010, the worker's supervisor advised the WCB that she was first aware of the worker's difficulties on January 11, 2010 when the worker said she was filing a claim. Nothing was reported by the worker in terms of an injury prior to this conversation. The supervisor noted that she frequently stopped by the worker's desk when she moved to her new location on December 21, 2010. The worker advised that she did not like the desk due to the keyboard tray and its size and that the mouse and keyboard tray needed to be on the same level. The mouse did not fit on this smaller keyboard tray and the worker needed to raise the keyboard tray to be on the same level as the desk which required the worker to raise the chair. The worker complained about the foot rest. The worker had a foot rest from her prior desk. She provided the worker with an assortment of foot rests but the worker was not happy and decided to use a plastic storage bin which was about 9 inches off the ground and 2.5 feet from end to end. The worker also had a foot rest on either side of the Rubbermaid bin. The worker would push off with her right foot to move around the workstation. The new workstation was set up according to the worker's prior workstation assessment. All desk heights are the same. The worker was on vacation from December 25 to January 3. The worker was at her thrid workstation as of January 8, 2010.

On April 21, 2010, the union representative advised the WCB that he received an e-mail from the worker dated December 16, 2009 where the worker complained of a cold draft and an allergy to paper dust. The next e-mail was dated December 22, 2010 where the worker states that after working at the new workstation for 13 minutes she knew that the accommodation would not work. The worker requested that the workstation be fixed. The third e-mail he received was from January 4, 1010. The worker indicated that the workstation was too high where the worker needed to raise her chair. Due to the chair being raised, the worker was unable to touch the floor which was causing difficulties with her legs and knees.

Diagrams and measurements of the worker's three workstations are on file. It showed that the first desk tray top was 28 inches off the ground and the second workstation desk tray top was 29 inches off the ground.

On April 23, 2010, the WCB advised the worker that her claim was not compensable based on the following rationale:

"Information on file confirms you moved to a new workstation on December 21, 2009 which was set up to meet a prior desk assessment. It is also noted that footrest were in place to assist in maneuver around your workstation. Your difficulties were first reported on January 4, 2010 and medical treatment was first sought on January 11, 2010. It is the opinion of Rehabilitation and Compensation Services that a relationship between the development of your right leg, hip and lower back difficulties and an accident "arising out of and in the course of" your employment has not been established. As such, no responsibility will be accepted for your claim."

On June 1, 2010, the worker's union representative submitted to Review Office that the worker's claim for compensation was acceptable and provided rationale to support his position.

On August 4, 2010, Review Office determined that on a balance of probabilities, the weight of evidence did not establish that the worker suffered a personal injury by an accident arising out of and in the course of her employment as defined under GECA. Review Office's decision was based on the following findings:

  • the worker provided two different histories (January 26, 2010 and February 14, 2010) as to the outset of her right knee difficulties;
  • there was no change or increase in job duties between December 22, 2009 to January 7, 2001;
  • information regarding workstation and chair heights were insufficient to support that an injury occurred at the workplace;
  • the worker did not complain of right knee, hip or low back pain or reported an injury event between December 22, 2009 to December 24, 2009. When she returned to work on January 4, 2010 she told a union representative that she had difficulties with her legs and knees due to her chair being raised. This was not consistent with what was reported to the WCB and the employer on January 11, 2010 regarding injuries to her right leg, hip and low back.
  • When seen by a physician on January 4, 2010, there with no mention of right knee, hip or low back difficulties.
  • the worker moved to a workstation of her approval on January 8, 2010 and did not report an accident or injury to the employer or seek medical attention until January 11, 2010.

On August 25, 2010, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable legislation:

The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the GECA which provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.

The issue to be determined by the panel is whether the worker's claim is acceptable.

Worker's Position

The worker was represented by a union representative who made a presentation on behalf of the worker. The representative provided a written copy of the presentation which was marked as Exhibit 1.

The worker's representative outlined the series of events involved in the worker's claim. He noted that the worker had been using a desk which was professionally set up to take into account the specific ergonomic requirements unique to the worker's medical needs arising from her pre-existing conditions. Unfortunately, the desk was in an area subjected to excess air movement which required that the worker be moved to a different location on the premises. The desk provided at the new location was not suited to the worker's unique requirements. Shortly after commencing work at the desk, the worker advised her supervisor that the desk was not satisfactory. Attempts were made to change the set-up of the desk but it continued to be deficient until the worker was moved to a new desk on January 8, 2010.

The worker answered questions posed by the panel. She confirmed that she did not work at the desk on December 21 or 24, 2009 but worked at the desk for a total of 6 days, specifically December 22-23, 2009 and January 4-7, 2010.

With reference to drawings which were on the claim file the worker described the new desk and the attempts to resolve the problems. She noted that the original set-up for the desk when the worker commenced her duties on December 21, 2009 was not approved by a professional ergonomist. The worker noted that the mouse could not fit on the keyboard tray and was placed on the higher work surface. The worker's chair was raised to its highest level, approximately 1 inch higher resulting in the foot rests being too low. The keyboard tray was 29 inches above the floor. The worker advised that she did not work at this desk as it was not satisfactory.

The desk was the adjusted on December 22, 2009 to extend the keyboard tray. The work surface was 29 inches above the floor. The larger extended keyboard reduced the work surface. The worker had to sit partially in the aisle with one leg outside the desk and one leg under the desk. The chair rolled off the floor mat and got stuck, requiring increased effort to move the chair. Only one alternate footrest was offered which was ½ inch higher than the other footrests. The worker tried using a plastic storage bin as a footrest.

The desk was again adjusted prior to January 4, 2010. The extended keyboard was removed. The desk top remained 29 inches above the floor. The keyboard tray was removed and the keyboard placed on the desk top which was too high. The footrests were too low, preventing the worker from using her flat foot to move the chair. This caused strain in the right leg and hip.

The worker was provided with a new desk on January 8, 2010. The work surface was 28 ¾ inches above the floor. The keyboard tray was 27 1/4 inches above the floor. The original footrests (3 inches high) are the correct height for the desk. The worker advised that her symptoms improved when she was provided with the new desk on January 8, 2010.

The worker advised that on December 22 at lunch she noted that her knee was sore and that it worsened on December 23. She stated that the pain in her knee subsided over the period that she did not work at the desk (December 24 to January 3).

The worker advised that her shoulder worsened between January 4 and 7 because she had to raise her shoulder due to the height of the work surface. She stated that she had pain in her whole leg and hip down to her foot on January 4.

Regarding her attendance at her physician's on January 4, 2010, the worker advised that she did not mention her hip, leg and back because her appointment was for another purpose.

The worker advised that she saw a chiropractor on January 11, 2010. She indicated that she saw him for her condition including her knee and could not explain why the chiropractor did not mention her knee in his report.

The worker described her duties which included the analysis of complex files. She advised that the length of time spent on a file can vary from under a half hour to more than a day and that generally she is expected to deal with 2 files per hour. She described the activities involved in reviewing a file. Regarding the volume of activity, she said that "Its continuous, you use the stapler continuously throughout the day." She also said that "…although we do work on the computer screen, when you're working on that particular work flow you spend quite a bit of time doing the reading…" She said she reads information, including court documents, sometimes does an analysis, determines payment schedules, looks at statements of account or receipts and writes original letters. In addition she sometimes contacts clients by telephone.

The worker also advised that her job allows her to get up and walk in the workplace. She stated that "...what I made a habit of doing is getting up about every half hour, going for a short walk."

Analysis:

In order for this appeal to be successful, the panel must find that the worker sustained an injury "out of and in the course of employment". On the basis of the evidence before us, we were not able to make this finding. We find, on a balance of probabilities, that the worker did not sustain an injury at work and that the claim is not acceptable.

In reaching this conclusion the panel notes the short period of time during which the worker was working at the desk and the nature of her duties. She worked for 6 days, 4 of which followed an 11 day break (December 24, 2009 to January 3, 2010).

The worker described her job duties and related activities at the hearing. The panel finds that while the duties may involve some repetitive movement, that the amount of repetitive movement is limited and on a balance of probabilities, would not cause the injury noted by the worker. The panel also notes the worker's testimony that she takes brief walks around the office approximately every half hour, such that there are no long periods of work at the desk.

The panel notes that the changes to the desk involved small adjustments which given the short time the worker performed the duties and the nature of the duties would not likely result in injury as reported.

Regarding the injury, the worker indicated at the hearing that the injury started in her right knee and that the pain emanated from her right knee down her leg to her foot and up her knee to her hip and lower back. She stated that she advised her chiropractor that the injury involved her right knee. However, the panel notes there is no reference to a right knee injury or pain in the report provided by the chiropractor and is unable to accept that a right knee injury or any injury resulted from the work activities described by the worker. The panel also notes that the worker saw her family physician on January 4, 2010, albeit for a different condition, but did not mention her painful knee, hip or back. The panel finds this unusual given that the physician is the worker's primary medical provider and finds this supports a finding that there was no injury as of that date.

The worker's claim is not acceptable and her appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of March, 2011

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