The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his right elbow condition was not the result of a workplace accident. A hearing was held on January 15, 2015 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In early April 2014, the worker filed a claim with the WCB for a lateral epicondylitis condition that he related to his work duties that involved hand writing and using a mouse and keyboard. The worker reported that he had worked at his current position since September 2009 and that he first noticed symptoms about 8 months earlier. The worker indicated that the intensity of his work duties was quite high during this time period and that his physiotherapist said it was related to repetitive stress.

Medical reports on file consist of a Physiotherapy Initial Assessment dated April 3, 2014 and a Doctor's First Report dated May 14, 2014.

On May 30, 2014, a WCB medical advisor reviewed the file with a WCB adjudicator and stated:

The reports symptoms and PT findings are most consistent with the reported diagnosis (Mar 12 14) of right lateral epicondylitis. The more recent report from the a/p (attending physician) unaccountably notes a new diagnosis of olecranon bursitis, with no reported findings of lateral epicondylitis.

Regardless, neither condition would likely be accounted for in relation to the workplace duties. The duties are light and sedentary. In the absence of movements involving significant force, developing lateral epicondylitis is unlikely. The diagnosis of olecranon bursitis is largely inconsistent with the reported symptoms and the prior PT reporting findings.

In a decision dated May 30, 2014, the WCB determined that the claim for compensation was not acceptable as it was felt that the worker's job duties did not involve the anatomical movement associated with the development of lateral epicondylitis.

On June 6, 2014, the worker appealed the May 30, 2014 decision to Review Office. The worker stated that his work duties increased significantly and that he was tasked with drafting, negotiating and re-drafting at least 15 agreements and that each agreement on average was 50 pages long. This was on top of his standard work load which included drafting dozens of emails and documents per day. The worker stated that he had been moved to a new office and that the workstation set up was not ideal. He noted that the keyboard was substandard and the arms on his chair were too high causing pressure on his right elbow. The worker indicated that his treating doctor and physiotherapist along with medical literature all indicated that lateral epicondylitis was a repetitive stress injury due to excessive keyboard and mouse use and poor workstation set up.

On July 3, 2014, the employer's representative submitted to Review Office that neither the worker's desk set-up or computer use contributed to the development of lateral epicondylitis. The employer representative placed significant weight on the WCB medical opinion outlined on May 30, 2014.

On July 28, 2014, Review Office confirmed that the worker's claim was not acceptable. While it did not dispute that the worker's work activities in combination with poor ergonomics could cause the worker's elbow to be symptomatic, Review Office did not find that it was causal for the development of either lateral epicondylitis or elbow bursitis. Review Office felt there was insufficient evidence to establish that the worker had an accident within the meaning of The Workers Compensation Act (the "Act") to have caused his right elbow injury. On September 12, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by 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 elbow condition arose out of and in the course of his employment.

The worker’s position:

The worker was self-represented at the hearing. The worker submitted that in late 2013, he had been assigned a significant increase in workload and had changed offices during that time. The work station set-up was assessed by an ergonomic specialist and was found to be less than ideal. At the time, the worker did not think much of it, but did notice a build-up of issues with his forearm where the muscles would start burning while he was typing. His hand would become cramped and stiff. The worker just attributed these symptoms to his heavy workload.

Eventually, the condition progressed into a pain in his elbow which was quite painful when performing activities such as writing, shaking hands and turning doorknobs. The worker felt that the injury was caused by work and was supported in this view by his attending physician, physiotherapist and massage therapist. He submitted that repetitive stress resulting from excessive keyboarding and mousing in a non-ideal position caused his diagnoses of lateral epicondylitis and/or olecranon bursitis. The worker stated that his research of the medical literature indicated that under certain circumstances and for vulnerable individuals, frequent computer use that involves awkward postures, repetition and forceful exertions may be related to nerve, muscle, tendon and ligament damage. The worker felt that this was what happened to him in this case.

The employer’s position:

The employer did not attend the hearing but an advocate provided a written submission on the employer's behalf. The employer's position was that the worker's claim for right elbow difficulties did not arise out of and in the course of employment and did not meet the definition of accident. With respect to the diagnosis of olecranon bursitis, this condition could be caused by a single traumatic injury to the elbow such as a hard blow. Prolonged pressure caused by leaning the elbow on a hard surface may also be a factor. It was submitted that normally, one does not lean hard on an arm rest while typing or using a computer mouse.

With respect to lateral epicondylitis, neither typing nor leaning on an arm rest is a risk factor in the development of this condition. Lateral epicondylitis is normally associated with activities requiring repetitive and vigorous use of the forearm muscle. This sort of motion is not involved in typing, using a computer mouse or resting on an arm rest. The employer agreed with the WCB medical advisor's opinion that in the absence of workplace activities involving significant force, developing lateral epicondylitis would be unlikely.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s right elbow condition arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find that the worker’s condition was caused by activity he performed at work. On a balance of probabilities, we are not able to make that finding.

The panel has considered the nature of the worker's job requirements and the time spent performing his duties. In our opinion, the activities that the worker was performing in the course of his employment were not the type which would be causative of damage to the lateral epicondyle. In addition to the general absence of forceful grasping and high repetition, the worker was not required to sustain any particular activity for an extended period of time. While the job was stressful/high pressure and the worker may have been stationed at his desk for long hours, the work itself was varied. The typing was not continuous but rather was in the nature of drafting agreements, completing forms and responding to emails. This would be interspersed with reviewing and analyzing information, participating in meetings, and having telephone conversations. There would be time between activities for the muscles to have "microbreaks" which would allow for recovery. We do not view the job duties as demanding any prolonged sustained positioning.

With respect to the ergonomics of the work space, while the station was determined to be less than ideal, the identified issues were of a minor nature. The fact that the armrests were one inch too high would not be expected to cause either lateral epicondylitis or olecranon bursitis. Similarly, an incorrect keyboard height may cause strain in the neck or wrists, but injury to the lateral epicondyle would not be expected to result from keyboard positioning.

Overall, the panel is not satisfied on a balance of probabilities that the worker's job duties either caused or contributed to his right elbow condition. While performance of his duties may have triggered painful symptoms, we do not accept that typing or mousing or work station ergonomics worsened his condition by causing further damage to the tendon.

For the foregoing reasons, the panel finds that the worker's claim is not acceptable. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 5th day of March, 2015