The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her left wrist difficulties were not due to an accident arising out of and in the course of her employment. A hearing was held on January 14, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On March 28, 2013, the worker filed a claim with the WCB for injury to her left wrist which she related to typing duties at work. The worker reported that she typed approximately four hours per shift. On March 28, 2013, she felt a sharp pain in her left wrist when she awoke at home. The worker was right-handed and had been at her current job for nine months.

Medical reports showed that the worker was seen for treatment on March 28, 2013 and was diagnosed with tenosynovitis. At the next visit on April 11, 2013, the diagnosis outlined was de Quervain's tenosynovitis.

On April 16, 2013, the worker advised the WCB that she worked 20 hours per week, four hours per shift. She started working with the accident employer on June 18, 2012 and was typing a lot as they were working on an account that required a lot of e-mails to be sent. In mid November 2012, she started work on a different account. The worker denied any specific accident or injury to her left hand and had no prior left hand difficulties. Her right hand was fine. The worker said she typed a mixture of letters and numbers and that her job with the accident employer did not change between November 2012 and March 27, 2013. The worker reported that she had concurrent employment with a grocery store and assisted customers with the self-serve process. She rarely worked as a cashier.

On May 7, 2013, the worker was advised that her claim for compensation was denied as the WCB was unable to relate her diagnosed condition of tenosynovitis to her work duties. The adjudicator's decision was based on the following factors:

• there had been no recent change to the worker's job duties;
• the worker's symptoms became apparent at home when she awoke on the morning of March 28; and
• there had been no hazard at work to account for her left wrist pain.

On June 28, 2013, the Worker Advisor Office submitted a report from the worker's treating physician to support that the worker's claim for compensation should be accepted.

In his report dated June 19, 2013, the treating physician noted that the worker was seen at the clinic on March 28, 2013 regarding the sudden onset of left wrist and thumb pain. The worker attributed the pain to using her right arm for scanning. The diagnosis at that time was wrist tenosynovitis. The worker was advised that there was a distinct relationship to her work duties in her history. The worker was advised to use ice and rest and to refrain from prolonged keyboarding which would have perpetuated her problem. When the worker was next seen for treatment, she described a "shock" of pain in the dorso-radial wrist when keyboarding. The physician stated that this was clearly a work-related problem based on examination and history and it had responded appropriately to work modifications.

On July 18, 2013, the worker advised the WCB that she never told her physician that her left wrist difficulties were related to scanning. She said the only job that puts stress on her left hand was from typing. The worker noted that she had been employed with her concurrent employer for 9 years and worked mostly in the u-scan area for the last 4 years. She was not claiming that her work with the concurrent employer caused her injury.

In a decision dated July 18, 2013, the WCB advised the worker that no change could be made to the initial decision of May 7, 2013. The adjudicator noted that de Quervain's tenosynovitis was a condition caused by activities involving forceful grasping and twisting. While keyboarding may be repetitive, there was no forceful grasping and twisting involved. The worker did not report any recent changes or increases with her job duties to account for the sudden onset of symptoms she experienced on the morning of March 28, 2013. On July 19, 2013, the adjudicator's decision was appealed to Review Office by the Worker Advisor Office.

On October 3, 2013, Review Office determined that an accident had not been established and therefore the worker's claim for compensation was not acceptable. Review Office felt that the worker was not in the course of employment when she had a sudden onset of pain in her left wrist and there was insufficient evidence to support that her left wrist difficulties arose out of her employment. The Worker Advisor Office 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 1(1) defines accident as:

"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

(c) an occupational disease,

and as a result of which a worker is injured;

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)

Subsection 60.8(2) and subsections 60 (1) and (2) provide that the Appeal Commission has exclusive jurisdiction to deal with compensation matters. This includes "the question whether any injury has arisen out of or in the course of an employment…"

The key issue to be determined by the panel in this appeal deals with causation and whether the worker’s wrist/hand injury was caused by an accident arising out of and in the course of employment.

Worker's Position

The worker was represented by a worker advisor who made a submission on the worker's behalf. The worker answered questions from her representative and the panel. The worker's husband also attended and addressed the panel.

The worker's representative noted that the medical information on file is supportive of the worker's claim for a workplace injury. She noted the treating physician's July 26, 2013 report which stated:

"The patient first attended the Pan Am Clinic on March 28, 2013 regarding sudden onset of left wrist and thumb pain. She was examined and seen to have swelling on the dorso-radial left wrist and she was tender over the wrist extensors and the thumb tensors/abductors. Her Finkelstein's test was positive. She was diagnosed with thumb/wrist tenosynovitis. There was a distinct relationship to her work duties in her history. She was advised ice and rest and to refrain from prolonged keyboarding which would have perpetuated her problem…This is clearly a work-related problem based on examination and history and it has responded appropriately to work modifications."

The panel asked the worker several questions regarding her work duties. She advised that she works at two jobs but that her concurrent employment with a retail establishment does not involve keyboarding or other duties which involve her left wrist.

The worker described her duties at the accident employer:

"I mean we also get calls from people who don't know like how to use their [product] and we walk them through the steps. Like they're on the screen. We'll say here's what you've got to do and that. But there's also the aspect where we set up all the repairs. So we take down their name, all their information, their address. Then we go into the repair screen and we set up all the stuff. We give them their long explanation of what colour the system is, what system it is and we give them the problem that the system has.

And then after you're done that, you send what they, I guess they call the CTS, which is to their corporate, telling them this is the problems the person had with their system, and then you send that off to them. So you kind of do two things for repairs.

There's also setting up for parts. Like if someone has one part they know is damaged in their system, we can set up a part repair where they'll get shipped out the part that they need for their system. Like if it's a battery, we can ship out a battery.

So like we set all those things up there and ‑‑"

She told the panel that:

• she works 4 hour shifts 5 days each week at the customer assistance call centre
• all calls are incoming in the job she was doing at the time of the accident
• length of a call can vary depending on the clients' needs
• on a busy day she can receive between 25 to 30 calls and on a slow day 12 to 17 calls
• she uses a computer, flipping through various screens during a call, as she gathers information and walks clients through information on the screens
• she types client information in a notebook program
• the amount of typing varies from call to call
• she keeps 5 to 6 programs open at the bottom of the screen
• she does not use the numeric keypad, but uses the tab key, on the left, to move between fields
• neither her workstation nor keyboard are ergonomically adjusted
• she does not use the same workstation each day
• she does not hand record information on paper
• when she started work at the employer's she was given advice on how to use the keyboard, "to use your hands the most efficient way as possible" including don't move your hands from the centre, reach to the other parts.

With respect to the onset of symptoms the worker said that

"So I woke up and I went to go get out of bed and I went to move my arm and it was just like severe pain and I didn't know why. Then I figured, okay, well, it will just go away with time or, you know, maybe I just did something to it. And then I started walking around and I tried to -- like I turned the shower on with my right and I was going to take a shower, but then it was just so painful. Like I could barely move my arm away from my body without feeling pain. Like I couldn't move my wrist at all almost.

So basically I just went straight to the phone and I called my work and I told them like I can't make it in today because I'm in severe pain. Like I can't even move my wrist at all."

The worker said that although she had recovered and returned to work, she has a "dull reminder" of the injury when she types. The worker advised that she made some changes to her work on the recommendation of her treating physiotherapist and that the changes have been helpful. She indicated that she recently increased her hours at the accident employer's to 25 hours per week.

The worker's husband expressed concern about the adjudication model used during the appeal, including the absence of a representative from the WCB to answer questions about the WCB decision, the absence of a medical professional on the panel, and the panel's questioning of the worker regarding her injury and details of her employment. He submitted that the medical on the file supports acceptance of his wife's claim. He noted that the WCB did not dispute the diagnosis of the injury.

In closing the worker advisor noted that the treating physician supported the worker's claim, the treating physiotherapist told the worker that the mechanics of how she uses her left hand to reach on the keyboard could be a contributing factor to the onset of the condition and the worker does not participate in other activities which would contribute to the injury.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker's injury has been diagnosed by her treating physician as thumb/wrist tenosynovitis. In his April 11, 2013 chart note the physician refers to her injury as de Quervain's. The panel accepts the treating physician's opinion on her diagnosis.

The issue that the panel must address is causation. Did the worker's employment duties cause her diagnosed injury? The panel's role is to determine if the injury was caused by her employment. This is an adjudicative decision. Pursuant to subsection 60(2) the panel must determine whether the injury arose out of and in the course of the worker's employment.

In order for this appeal to be successful, the panel must find that the worker’s medical condition was caused by, aggravated or enhanced by her work duties. On a balance of probabilities, the panel was not able to make these findings.

The panel has taken into account the physician's opinion, but the panel must also consider other evidence including the worker's duties, time spent performing the duties, and the onset of symptoms.

The panel is aware that literature exists which supports a causal relationship between a worker's use of and positioning of hands while working and tenosynovitis and other literature which challenges such a relationship. The panel's understanding of de Quervain's tenosynovitis is that work activities can play a role in causing or aggravating the condition, especially where the duties involve extensive use of the thumb and repetitive movement of the thumb in grasping and extension. The panel also understands that the condition generally develops over an extended period of exposure and that sudden onset is not indicative of an occupationally based condition, except in the case of acute trauma.

In making this decision, the panel explored at length the role of employment duties in the development of the worker's condition. The panel asked questions about the worker's duties, use of her left hand (thumb and wrist), posture, work volumes, time involved in typing activities, etc.

Based on the worker's evidence regarding her employment, the panel is unable to find that the worker's typing duties were highly repetitive or placed significant stress on her left thumb and wrist. The evidence does not show the worker's duties involved forceful twisting or grasping. Her duties involved significant interaction with the clients, verbally walking/guiding clients through their problems and concerns. While this occurred, she used her left hand to tab on her computer to access various pages and fields. At the same time, the worker used her right hand to control the mouse and used both hands to type notes in a notebook program and in fields on the computer screen. The worker estimated that call volumes over a 4 hour shift ranged between 12 and 30 calls per shift. In the panel's assessment, this does not indicate a high volume of repetitive typing during a 4 hour period.

Regarding the onset of symptoms, the worker advised that the symptoms occurred suddenly one morning. She said that as she sat up in bed, she extended her arm and felt immediate pain. She said that the pain returned as she extended her arm to turn the shower on. She described the pain as severe. She said that she did not have symptoms the night before the onset and had no prior symptoms at work or otherwise. The panel finds that this sudden onset of symptoms with no prior symptoms at work does not support a finding that the worker's condition is related to her work.

The panel accepts that the worker's duties could aggravate a pre-existing condition, but in this case the worker was symptom free prior to the onset of pain and ceased working after the sudden onset. The panel finds that the evidence does not indicate an aggravation occurred.

The panel has considered the literature provided on behalf of the worker but finds that the literature does not address the etiology of the worker's condition. In any case, the panel recognizes that work duties can cause tenosynovitis and other related wrist/hand injuries, but that this must be determined on a case-by-case basis.

When considering the evidence as a whole, the panel finds there is insufficient evidence, on a balance of probabilities, to establish that the worker’s left thumb and wrist condition was caused by her work duties. The panel finds that the worker's injury did not arise out of and in the course of her employment and accordingly finds that the claim is not acceptable. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of February, 2014