The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her diagnosed condition of right lateral epicondylitis was not caused by her work duties or ergonomic set-up of her workstation.  A hearing was held on March 9, 2015 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In June 2014, the worker filed a claim with the WCB for right elbow and forearm difficulties that started in October 2013 which she related to her computer and desk set-up.

On June 23, 2014, the worker advised a WCB adjudicator that she first started to feel a burning pain around October 2013 which worsened as time went on. When not working on the weekend, her condition would improve. The worker described her workstation and her job duties. She used a laptop on a desk and there was no keyboard tray. She used a mouse that was on the desk and her arms were on an upward angle to use the keyboard and mouse. Her elbows did not rest on anything. Her phone was directly in front of her on the desk. She was right hand dominant and did not use a headset. The worker indicated that she was at her desk 90% of the day. She did data entry work, talked on the phone and took manual notes. There had been no change in her duties but there had been an increase in workload.

On June 25, 2014, the employer advised the WCB that an occupational safety and health officer had assessed the worker's work station and suggested stretching exercises and equipment changes.

Medical reports on file confirm a diagnosis of right lateral epicondylitis.

On July 8, 2014, the worker was advised that the WCB was unable to accept her claim as an accident had not been established. The WCB indicated that there had been no change in duties and there had been no change in the workstation for over three years. The WCB could not identify activities within her work duties to establish a relationship with the development of lateral epicondylitis.

On July 22, 2014, the worker provided the WCB with additional information. The worker indicated that she informally advised her supervisor and co-worker of the problem in January 2014. She said the recommendations of a keyboard tray and chair had not yet been implemented. In 2011, they first received laptops. From December 2011 to May 2012 she was in a course to train fellow co-workers on the new program. They were in the boardroom daily using laptops with no keyboard trays. About two years ago they were first given wireless keyboards and a mouse. She did a lot of writing and had to enter data into the CPU. She moved between 5 to 15 files in the cabinet throughout the day. They could weigh up to 2 pounds.

A WCB medical advisor, on July 28, 2014, discussed the claim with the adjudicator. He noted that the majority of the worker's tasks were keyboarding and there was insufficient evidence to support lateral epicondylitis as a work-related injury on the basis of keyboarding. On July 28, 2014, the worker was advised that no change would be made to the adjudicative decision of July 8, 2014.

On September 19, 2014, a worker advisor, acting on the worker's behalf, appealed the WCB decision to deny the claim. The worker advisor noted that typing was one of the known causes for lateral epicondylitis based on literature. The worker advisor's opinion was that the extensive time spent entering data contributed to the onset of the worker's elbow condition as well as the poor ergonomics of her workstation, especially the upward angle of her arms with no support. It was felt that there was sufficient evidence to support a relationship between the development of right lateral epicondylitis and the worker's job duties.

On October 24, 2014, Review Office confirmed that the worker's claim was not acceptable as it was unable to find that typing was a risk factor for the development of lateral epicondylitis. Review Office noted that the ergonomic assessment by the employer recommended a headset, keyboard tray and a new chair. The proposed changes would enhance the worker's comfort while at work; however the risk factors for developing lateral epicondylitis were not represented in the worker's workstation regardless of the ergonomic set up. A direct cause and effect relationship could not be established between the worker's workstation and her right arm condition and an "accident" was not established. On November 20, 2014, the worker advisor 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 her employment.

The worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the worker's claim should be acceptable as there was a relationship between her right elbow condition and her work duties. The worker had no prior right arm or elbow difficulties. For three years prior to the diagnosis of her condition, the worker performed excessive data entry using an ergonomically poor work station. The office chair had arm rests but were not adjustable to the desk so the worker had to hold her arms at an awkward angle while entering data. The worker blamed this activity for the onset of her right elbow symptoms and diagnosis of right lateral epicondylitis. Medical literature stated that lateral and medial epicondylitis is considered to be an overload injury. Risk factors for epicondylitis is any activity that causes repetitive strain on the forearm extensors or flexors. It was submitted that the awkward angle in which the worker held her arms would qualify as an overload to the forearm extensors and flexors.

The employer’s position:

The employer was represented by an advocate at the hearing. The employer's position was that it agreed with the WCB decision to deny the claim but felt that there could be some further investigation made into the claim.

The worker was diagnosed with lateral epicondylitis which she related to her work activities which took place mostly at her work station. The worker cited a few of her job tasks as being the issue, in particular typing. The employer agreed with the WCB medical advisor's opinion that the act of typing would not be the cause of lateral epicondylitis on its own. The employer also agreed with the Review Office statement that the development of lateral epicondylitis is related to repetitive, vigorous movements of the forearm and elbow against force, requiring a strong grip or use of vibratory tools. The condition was also known to occur with insidious onset and occurred more often between the ages of 30 and 55. The worker fell within this range. It was noted that no traumatic accident or incident was alleged in this case and there did not appear to be forceful movements in the worker's job duties.

Overall, the employer agreed with the WCB's decision, but noted that adjudication of the claim would have benefited from obtaining an ergonomic assessment with review by a medical advisor.

Analysis:

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

At the hearing, the worker described her job duties in detail. The majority of the worker's time was spent working at a desk. She estimated the time spent at her workstation to be 90 percent of the workday. The worker spent a large portion of her time entering handwritten data into a computer program, although she also spent some time taking phone calls (2 or 3 calls per day) and handwriting chart notes. The typing would involve not only keystrokes, but also frequent use of a mouse and depressing the mouse buttons. The worker's desk was an older model metal desk with no keyboard tray. The worker would place her laptop on top of the desk along with a wireless keyboard and mouse. She would position the keyboard either on top of a chart on the desk or angled off to the right side. Her arms would have to extend straight out in front of her to reach the keyboard. The worker's chair also had armrests which were too high so the worker had to work inside of the armrests with her arms closer to her body. To use the armrests would have required her to wing her arms out while typing. Sometimes the worker would rest her forearms on the edge of the desk and sometimes they would be positioned over the desk in the air with her hands being on the desk.

Another task performed by the worker was that she would get up to retrieve files from a filing cabinet about 5-10 times per day. In order to open the filing cabinet, she would have to use her right arm, depress a latch, and pull on the drawer. Often, the drawers did not glide smoothly and would stick. Another job task was opening the deadbolt on the door in the morning. At the time in question, the deadbolt and the door were difficult to open and she had to wiggle the door and the key to gain entry.

The panel notes that in addition to desk work, the worker also conducted assessments where she would meet with clients outside of the office. She tried to conduct 2-3 assessments per week and these would usually take one hour, but could range from half an hour to as long as two hours plus travel time.

The panel observes that generally speaking, all of the actions required by the worker to perform her job duties involved use of the arms close to the body envelope. We did not see much in the way of repetitive, vigorous movements with the forearm and elbow against force or with a strong grip. There was no use of vibratory tools or tasks which involved prolonged sustained positioning. Overall, the panel felt that were was not sufficient work activity to establish a causal link between the job duties and the development of the worker's right lateral epicondylitis.

With respect to the ergonomics of the work space, while some improvements were recommended, the identified issues (i.e. adjustable keyboard, use of a head set and a new chair) were not ones which are aimed at alleviating ergonomic factors associated with the development of lateral epicondylitis. The awkward positioning addressed by the changes would not be something which is considered a risk factor associated with lateral epicondylitis.

Overall, the panel is not satisfied on a balance of probabilities that performance of the worker's job duties either caused or contributed to her right elbow condition. We therefore find that the worker's claim is not acceptable. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of April, 2015