The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her bilateral forearm and wrist condition was not related to her workactivities of using a mouse or keyboard. A hearing was held on September 30, 2015 to consider the worker'sappeal.

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 severe pain in her forearms which she related to her job activities that entailed using a keyboard and mouse. The date of accident was March 11, 2014. The worker stated:

1.5 yrs ago working for [employer]. My arms had bothered me. I had a few weeks off summer vacation and I rested. I got a different work station/keyboard and I was able to work. Recently the pain has become too crazy. I didn't classify it as an injury at the time. I knew I needed either a new mouse, or chair or something configured differently and then steps were taken at that time to try to help me...The left forearm is worse. I noticed issues in both. Mild soreness in my forearms...it progressed. In September I was doing overtime so I thought the soreness was from overuse. But then they gave me a new chair and desk to try to figure out what would work. In the last 2-3 weeks it's been pretty much constant when I'm on the keyboard.

On March 18, 2014, the worker spoke with a WCB adjudicator and described her employment history and work duties in general, the symptoms she experienced and the medical treatment she received for her forearm complaints. The file information also contains a job description related to the worker's job duties.

On March 28, 2014, the WCB's healthcare branch was asked to provide a medical opinion regarding diagnosis and its possible relation to the job duties performed by the worker.

In a response dated April 7, 2014, a WCB medical advisor indicated that the likely diagnosis was bilateral medial epicondylosis. The diagnosis was usually associated with repetitive forceful or repetitive resisted wrist and hand movements and it would not be a result of sedentary office work.

In a decision dated April 8, 2014, the worker was advised that the WCB was unable to accept responsibility for her wrist and forearm difficulties diagnosed as bilateral medial epicondylitis as she was not exposed to highly forceful and repetitive motions while performing computer and office work.

File records showed that the worker provided the WCB with additional information to support that her wrist and forearm conditions were related to her work duties. In part, the worker stated:

"1. I believe that my extra work hours required in November with more time spent at the computer were the start of the problem with my forearm pain that were above any normal use.

2. The fact that my diagnosis was bilateral is a direct result of my using the Contour Roller Mouse (which requires use of both hands) without a proper ergonomic set up.

3. Had the nurse responded to me and correctly set up my workstation, my injury could have been less severe and healed while I continued to work fulltime. The use of the Contour Roller mouse actually intensified my forearm pain and my repeated requests for assistance were left unanswered.

I believe the events at my workplace over the recent months are what led to the development of Bilateral Medial Epicondylitis..."

In a second decision dated June 10, 2014, the worker was advised that the new information had been considered and that a relationship between her current diagnosis and an accident occurring at work had not been established. The position of the case manager was that the worker had not been exposed to highly forceful and repetitive motions of her wrists and forearms consistent with the development of bilateral medial epicondylitis.

On July 8, 2014, a worker advisor wrote Review Office requesting reconsideration of the decisions dated April 8 and June 10, 2014. The worker advisor argued that the file evidence supported that the worker's injury was either directly caused by the repetitive physical demands of her employment combined with a sub-optimal workstation, or a pre-existing condition that was made worse by her work activities.

On September 3, 2014, the employer's representative submitted that there was no basis to disturb the decisions of April 8 and June 10, 2014. A copy of the employer's submission was given to the worker advisor for comment and his response is on file dated September 10, 2014.

On September 17, 2014, Review Office was unable to find that the worker suffered a personal injury that arose out of and in the course of her employment and found that the claim was not acceptable. Review Office accepted the WCB medical opinion of April 7, 2014, that the worker's job duties were sedentary in nature and did not include sufficient repetitive forceful or repetitive resisted wrist and hand movements to cause bilateral medial epicondylitis. On March 24, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

This appeal deals with claim acceptance. The key issue to be determined by the panel deals with whether the worker sustained personal injury by accident arising out of and in the course of her employment.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions posed by her representative and the panel. The worker advisor submitted that the evidence supports that the worker sustained an injury to her forearms as a result of her work.

The worker advisor provided the following description of events resulting in the injury:

"In January of 2013, the worker was seconded to a new position, working on a special project in a different building at an old desk. This new position involved, as she reported, near constant keyboarding and mousing. Shortly thereafter, she had an ergonomic assessment.

She had been experiencing forearm soreness, particularly after busy workdays. The soreness would go away without medical attention or any time lost from work. She did, however, report these difficulties to her supervisor.

The employer had an occupational health nurse, who did an ergonomic assessment, and found areas that required improvement. These changes were slowly implemented over the following months.

While struggling to meet a month-end deadline in November of 2013, [the worker's] symptoms became more pronounced. She took time over the holidays in December of 2013, and this allowed her to carry on with her work, and she got back to work again in January of 2014. Another ergonomic assessment resulted in the recommendation that a contour rollermouse, which was not provided until March of 2014.

The employer’s occupational therapist reportedly felt that [the worker's] symptoms were due to a combination of overtime and the excessive mouse use.

This new contour rollermouse was provided to [the worker], but no instructions were given. She tried to use the new mouse, but, doing so, caused a quick and intense relapse of her pain. She tried to continue working, but had to seek out medical attention.

She sought the attention of a doctor and a physiotherapist, who felt her condition was due to the increased workload, combined with the poor ergonomics in her workplace.

With conservative treatment and time off work, her symptoms dissipated such that she was able to go back to work doing alternate duties within a matter of weeks.

Unfortunately, her employment was terminated while she was still working with restrictions. Subsequently, her symptoms resolved completely."

The worker advisor submitted that the progressive soreness that the worker experienced over time was due to the intense keyboarding and mouse work that was performed at an ill-suited workstation for her stature. The overtime hours with the intense work to meet a deadline increased her symptoms, and the introduction of a contour rollermouse resulted in acute exacerbation of her condition.

The worker summarized her duties as:

"So it’s a computer program and basically we, I was designing it to meet the needs of the [employer]. So, lots of typing, mostly mousing, more mousing than typing, to click, click, and set up, and configuration it’s called."

The worker said that the job involved:

• navigating through different screens, different menus, lots of going to the menus, turning things off and on.
• testing and documenting what the outcomes were.
• designing how the program will look on the screen, what drop-down menus there would be for the user, what fields they would fill out.

The worker acknowledged that the job had a cognitive aspect and involved much problem solving. She said that its "more clicking to turn menus on and off and navigate around" and said that "Not typing, no, it’s not data entry."

The worker said that she first had symptoms in 2012 but they were not frequent. She said that:

"When I really noticed it would have been November of 2013, because we were meeting a project deadline. It was, we were going live with our new stuff the first week of December. So, it was crunch time to work really intense, get everything tested, roll it all out. So, I was working I think more aggressively than I would normally work."

The worker said that she did not miss time from work in November and did not seek medical treatment in November.

The worker said that her pain worsened significantly when she began using the rollermouse in February and was significantly better within a month of stopping the use of the rollermouse.

While the worker acknowledged telling a WCB representative that she had sore arms from waterskiing, this only related to 2012. She said that the waterskiing is a distraction and is not relevant to her claim. She said her symptoms are related to her work in the winter and not from her summer activities.

Employer's Position

The employer was represented by its compensation coordinator. He reviewed the claim history, including the WCB decisions and medical information, and submitted that the claim is not acceptable.

The employer representative noted that the medical advisor commented that the worker's diagnosis is typically associated with repetitive, forceful or repetitive resisted wrist and hand movements and would not be predicted to be as a result of sedentary office work. The representative submitted that the requirement that there be forceful repetition, or repetitive resisted wrist and hand movements, is a guideline that is followed by a number of jurisdictions in Canada, including Manitoba.

He said that repetition alone would not, in and of itself, cause the bilateral medial epicondylitis. The known activity of water skiing involves a number of physical forearm demands normally associated with the development of epicondylitis, two of which would be gripping the tow rope and being pulled against resistance by a powerful boat. He submitted that there are no forceful activities associated with keyboarding and use of the mouse.

The representative noted that the worker is right-hand dominant, but that evidence on file indicates that the left arm was worse than the right.

The employer representative disagreed with the suggestion that if the panel does not accept the cause/effect argument, that the claim would be acceptable as an aggravation of a pre-existing condition.

The employer representative noted there are numerous causes of the worker's condition, both work-related and non-work-related. He said that:

"Naturally, where the condition exists, the more the hand and wrist are used, the greater the symptoms. This observation does not necessarily mean that using the hand and wrist causes the condition or makes it worse. Association should not be assumed to signify causation."

The employer representative said that the worker's employment contains insufficient risk factors to have caused or contributed to her diagnosed bilateral medial epicondylitis.

Regarding the change of duties referenced by the worker, the employer representative said that it is speculative to suggest that the worker's condition was aggravated, given the changes in the duties did not involve forceful forearm activity. He also suggested that the overtime that the worker worked in November 2013, which amounted to approximately 20 hours spread over a two‑and‑a‑half week period would not be a significant factor.

With respect to the use of the rollermouse, the employer representative disagreed that the use of the rollermouse was causative and said it was not identified as an aggravating factor in any of the medical reports on file.

Analysis

As a preliminary matter, the panel notes that the employer representative referred to a study in his oral submission. The panel has not taken into account the study nor the employer representative's comments on the study referenced in his submission, as the study was not provided within the time period provided under the Appeal Commission Rules of Procedure.

The worker is appealing the WCB Review Office decision that her claim for bilateral lower arm/wrist injury is not acceptable. For the worker's appeal to be approved, the panel must find that the worker's left and right arm/wrist injuries arose out of and in the course of her employment. The panel was not able to make this finding.

The panel has considered all the evidence including the evidence provided at the hearing, and finds, on a balance of probabilities, that the worker's condition was not caused or aggravated by the worker's employment duties. The panel considered the diagnoses that have been provided and the nature of the worker's duties in arriving at our decision.

There are two diagnoses noted on the file. The treating physiotherapist identified a diagnosis of bilateral medial epicondylosis. The WCB medical advisor accepted this diagnosis and noted that this condition would not be expected from sedentary office work. The treating physician refers to tender volar wrists and flexor tendinitis. The worker described the injury as being in the belly of her forearm. While the panel believes the diagnosis is more likely that of tender volar wrists and flexor tendinitis, rather than medial epicondylitis, it has considered the occupational factors against both diagnoses.

From the evidence provided at the hearing, the panel finds that the worker's duties do not involve repetitive forceful and repetitive resisted wrist and hand movement. The duties involve the use of the mouse and keyboarding but there is a significant cognitive aspect which slows the process. As well, the worker's forearms were in a neutral position while performing the duties. The worker acknowledged that the job was not data entry or straight keyboarding. The worker's representative attributed the injury to "intense keyboarding and mouse work." The panel finds that the evidence does not accord with this position.

In describing her duties, the worker agreed that she would perform approximately 20 minutes of mousing and 10 minutes of typing each half hour. Until she received the rollermouse, she used her right hand to operate the mouse which results in her left hand being used only 10 minutes each half hour for keyboarding. This does not support a causal relationship between the work duties and the worker's concurrent development of a bilateral condition.

The worker advised that her symptoms increased significantly in November when her workload increased due to an impending deadline. The panel does not find this period to be significant in the development of her diagnosis given that the worker did not miss work or seek medical attention. The panel notes that when the worker was asked "Do you remember coming back in January with having any soreness or symptoms in your forearms at all?" she replied "I remember feeling really good."

The worker said that the use of the rollermouse in February resulted in a worsening of pain which resulted in filing the injury claim. The panel is unable to find a relationship between the worker's use of the rollermouse in February and March and the condition which took her off work. The panel notes that she used the rollermouse for a very short period of time, approximately February 24 to March 6. The panel also notes the postures which are involved in using the rollermouse did not demonstrate factors which are causative of the diagnoses.

Although the worker expressed concern about her workstation, the panel is not able to identify any causative relationship between the workstation and the worker's condition.

The panel finds, on a balance of probabilities, the worker did not sustain an injury arising out of and in the course of her employment. 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 2nd day of November, 2015