The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her right thumb and elbow conditions were not causally related to her work duties. A hearing was held by teleconference on January 26, 2016 to consider the worker's appeal.

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 injury to her right thumb, hand and elbow that she related to work duties which involved texting with a hand-held cell phone. The date of incident was recorded as "ongoing" and the date reported to her employer as August 18, 2014.

The Employer's Incident Report stated:

[The worker] mentioned that she was having pain in her right hand, wrist, and up her arm. She indicated that she was having trouble holding her phone, keys, and other objects. [The worker] said that texting on her phone was now painful in her hand and up her arm. She said that this had been getting progressively worse for about half a year or so.

Medical information showed that on August 18, 2014, the worker reported to her physician that she had right elbow pain on the medial side. The worker believed there was a swelling/nodule at the site of her pain. The worker also complained of pain in her right thumb from texting too much at work. The worker had weakness in her right hand which caused her to drop things frequently. The worker was diagnosed with de Quervain's tenosynovitis and right elbow medial epicondylosis.

On August 20, 2014, an x-ray of the right elbow was reported as showing no abnormality of the bone or joint, and that no effusion was suspected.

A WCB adjudicator spoke with the worker's employer on August 26, 2014. The employer stated that the worker was the head of a management team, and most parts of her job functions included texting. She had a cell phone 24/7 to enable her to keep in touch with work personnel, and her position required a lot of texting and emailing.

On August 27, 2014, the worker provided the WCB with further information related to the onset of her right thumb, wrist and elbow difficulties, a description of her regular job duties, and the reporting of her injury to her employer. The worker estimated that she spent 2 hours texting or emailing on her phone in the course of an 8-hour workday. The worker indicated that her condition was definitely due to texting at work, as her symptoms completely subsided when she went away on holidays.

On September 12, 2014, a WCB medical advisor responded to the WCB case manager that the worker's current diagnoses were right medial epicondylosis and de Quervain's tenosynovitis and were not medically accounted for in relation to a workplace activity.

In a decision letter dated September 16, 2014, the worker was advised that her claim for compensation was not acceptable as the WCB was unable to establish a causal relationship between her medical conditions diagnosed as medial epicondylosis and de Quervain's tenosynovitis and her job duties. In November 2014, the worker appealed the decision to Review Office. In support of her appeal, the worker submitted a report from a physical medicine specialist dated September 12, 2014.

On January 12, 2015, Review Office determined that the worker's claim for compensation was not acceptable. Review Office accepted the opinion outlined by the WCB medical consultant that the work activities which the worker described did not involve forceful grasping, gripping or repetitive strenuous forearm and wrist movements. Review Office also referred to the September 12, 2014 report from the physical medicine specialist, noting that the specialist had offered a diagnosis of medial epicondylopathy and likely early stages of first carpometacarpal joint osteoarthritis (i.e., a degenerative condition). Review Office stated that it did not find the evidence was medically accounted for in relation to the worker's daily workplace activities. Review Office concluded that the worker's right thumb and elbow conditions were not causally related to her work, and an accident as defined in The Workers Compensation Act (the "Act") had not been established. On September 7, 2015, the worker 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 Act, regulations and policies of the WCB's 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 provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Where such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker was self-represented. Her position was that she has pain in her right hand, arm and elbow which is definitely work-related.

The worker stated that the pain has become significantly worse in the last 2 years. It is particularly painful on the inside of her right elbow, where there is actual swelling, but the pain also extends towards her hand.

The worker stated that the pain increases the more she is at work. It definitely increases when she is texting, which seems to be the worst culprit. Typing hurts a little, but the texting motion is definitely the worst. The worker stated that she has to text a lot at work, as she is sort of like the communications hub for the employer's operations.

The worker said that she knows the pain is from texting and the amount of texting she has to do at work, as it decreases when she is not at work. She noted, for example, that when she takes a week-long holiday, even though the pain is still there, it is definitely reduced.

The worker submitted that she has been diagnosed with tendonitis, which is caused by repetitive action. The worker stated that different doctors have said that she has tendonitis, and she did not believe that was in dispute. She said her injury was not the result of a hit on the elbow or anything like that, but was something that had developed over time.

Employer's Position

The employer was represented by its Chief Operating Officer, who advised that the employer supports the worker's claim.

The employer's representative stated that they recognize that the nature of jobs is changing, and use of technology has caused repetitive stress injuries. The employer's operations are spread out over a number of different locations and consist of many varied programs. They have to communicate with others not only through phone calls, but also through constant emails and texting, all of which is done with cell phones. The worker is responsible for most of the regular communication and also emerging urgent issues that arise. Constant cell phone use is a big part of her job, and appears to be the cause of her condition.

It was submitted that all of the managers within the employer's management group have to communicate using their cell phones, but not to the same extent as the worker. The employer's representative stated that the employer wants its people to be taken care of. If the worker's injury is caused by her work, and the employer believes that it is, then she should be compensated.

Analysis

The issue in this case is claim acceptability, and whether or not the worker's right thumb and elbow conditions arose out of and in the course of her employment. In order for the worker's appeal to be successful, the panel must find that the worker's conditions were caused, aggravated or enhanced by the performance of her job duties. On a balance of probabilities, the panel is unable to make that finding.

The panel places considerable weight on the September 12, 2014 opinion from the WCB medical advisor. The medical advisor stated that the diagnoses as reported by the treating physician were right medial epicondylosis and de Quervain's tenosynovitis. Asked to comment as to whether the worker's current presentation was medically accounted for in relation to the workplace injury, the medical advisor opined:

In order for there to be a probable relationship between workplace activity and the described conditions, a necessary criterion is for the activity to involve sufficient forces to likely result in tissue injury. This criterion has not been met. The described workplace activities do not involve sufficient forces to likely be associated with tissue injury.

The panel accepts that opinion. The panel notes that the criterion which the medical advisor applied is consistent with the panel's understanding of the necessary criterion for these conditions.

At the hearing, the worker provided further details of her job function, and responded to questions from the panel with respect to her duties and texting activities. The worker advised that she has been using a touchscreen phone since approximately 2012. She holds the phone in a vertical position with both hands when texting, with the phone at chest height and her elbows at her side. She generally types using both thumbs, but occasionally uses her pointer and/or middle fingers as well.

The worker stated that she generally does not get involved in the day-to-day management of the employer's operations, but deals with exceptions and providing support for any emergencies and problems that arise. People need to be made aware of what is happening quickly if something is going on with any of the employer's operations or participants. She has to communicate not only with managers, but also board members and public officials. She said she loves it when she can pick up the phone and call someone, but when she has to reach a number of people at the same time, it is quicker to send a group email or text message. As a lot of these people are travelling around during the day, she has to text rather than email them.

In terms of how many messages she would send in a day, she said that it would depend on the day. She guessed that on any given day, she would send at least 20 to 30 messages, averaging approximately a paragraph in length. A review of her messages from the day before the hearing showed that she had sent 30 messages, and it was noted that this was a slow day as she was in meetings for half the day. Outside her regular hours, she would also be managing and relaying an average of 2 to 3 messages every evening.

The panel carefully reviewed and considered the nature of the worker's job duties as described at the hearing against the criterion which is referred to above. The panel noted that texting on a touchscreen phone would involve tapping, as opposed to forceful movements. The worker used both thumbs (and sometimes other fingers) when texting and her arms were in a neutral position, with her elbows at her side. At 30 texts in a day, the worker would be sending an average of 3 to 4 texts, of varying length, in an hour. Evidence on file indicated that she spent approximately 2 hours a day texting. There would therefore be significant rest periods between texts or in the course of the day. In the circumstances, the panel was unable to find that texting or any of the other activities which the worker performed involved the type and volume of sufficiently forceful repetitive or abrupt movements which are associated with medial epicondylosis and de Quervain's tenosynovitis.

The panel also considered the September 12, 2014 report from the physical medicine specialist. The panel noted the comment in that report that the elbow and thumb pain are not always activity related, as well as the reference to there being some crepitus in the elbow and early starts of osteoarthritis. The report further records that Finkelstein's test is negative, a result which is a specific test to confirm the presence de Quervain's tenosynovitis.

The panel also considered a recent MRI of the worker's right elbow dated June 5, 2015, which the worker submitted in advance of the hearing. The stated impression from the MRI was that "a mild tendinopathy involving the flexor origin at the level of the medial epicondyle is noted." The panel noted that there was no reference to tendinopathy originally, and the September 2014 report from the physical medicine specialist stated that the worker had tenderness in the medial epicondyle flexor tendon origin "but no other positive provocative maneuvers for tendinopathy." It is the panel's understanding that tendinosis is also associated with activities that involve sufficient forces to result in an injury. In all of the circumstances, the panel was unable to establish a causal relationship between this reference to "a mild tendinopathy" and the worker's employment activities.

In conclusion, the panel finds, on a balance of probabilities, that performance of the worker's job duties did not cause, aggravate or enhance the worker's right thumb and elbow conditions. While texting may have been painful, the panel is not satisfied, based on the evidence that it would have caused or contributed to the development of the worker's conditions. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 23rd day of March, 2016