The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for bilateral carpal tunnel syndrome was not acceptable. A hearing was held on April 7, 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 on March 5, 2015 for soreness in both hands that she related to her job duties which involved typing and mouse work. The worker reported that she first noticed her symptoms at the end of 2013 and reported her symptoms to a manager on December 19, 2013. The worker indicated that she is right-handed and had been at her current job for 1.5 years.

The Employer's Accident Report stated that the worker had her workstation assessed on January 7, 2014 due to soreness in her hands and wrists. The worker stated that her carpal tunnel syndrome ("CTS") had been getting worse since October 2014 and requested another ergonomic assessment. The worker indicated that her chair gave her proper lumbar support and she used an ergonomic keyboard and ergonomic mouse located on a tray attached to her desk. She had a footrest to support her feet and a headset for her telephone.

Medical information showed that the worker was diagnosed with bilateral CTS, worse on the right than the left.

In March 2015, WCB case management contacted the worker and her manager to obtain additional information related to the nature of the worker's job duties. The WCB also obtained a copy of the report relating to the workstation assessment that was conducted on January 7, 2014.

In a decision dated April 2, 2015, the worker was advised that the WCB was unable to accept responsibility for her wrist difficulties as the nature of her work did not involve forceful hand motions, mechanical stress to the base of her palm, or the anatomical movements required to be causative for the development of bilateral CTS.

On April 28, 2015, the worker's treating physician wrote the WCB in support of the position that the worker's right-sided CTS was directly attributable to her work duties.

By letter dated April 29, 2015, the WCB advised the worker that the April 28 letter from the treating physician did not provide new or additional information that would change the decision rendered April 2, 2015.

On May 4, 2015, a union representative acting on behalf of the worker appealed the WCB's decision to deny the worker's claim for CTS. On May 22, 2015, the worker advised that she was claiming for her right CTS only, as her left-handed symptoms had improved. On June 19, 2015 the employer's advocate provided a submission in response to the appeal, and the union representative responded to that submission on June 30. On July 7, 2015, Review Office determined that the claim for compensation was not acceptable as it was unable to find that the worker's job duties were the cause of her bilateral CTS condition. On August 11, 2015, the union representative appealed the decision to the Appeal Commission and an oral 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 WCB's Board of Directors.

Subsections 1(1) ("accident") 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. Once such an accident has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker was assisted by a union representative, who made a presentation on her behalf.

The representative submitted that the worker works full time in a position where 98% of her job is sitting at a desk doing data entry. She is constantly going from her mouse to the number pad to the alphabet keys. Her symptoms appeared shortly after she began working in her current position. She had two ergonomic assessments, and was more comfortable with the ergonomic changes, although she continued to feel pain. Her workload increased substantially when she had to assume a coworker's duties as well. For two months, she was doing double the amount of data entry, and continued doing 30 to 40% of the coworker's duties even after a temporary replacement was hired. Once the ergonomic changes were in place, her left side started to resolve, but with the repetitive nature of her work and the increased workload, her right side worsened.

The representative referred at length to Appeal Commission Decision No. 78/2003, where he noted the panel accepted that computer use caused the CTS in a worker who was continually using a mouse and keyboard. While recognizing that each case is detail-specific, the representative submitted that there were some excellent general observations in Decision No. 78/2003 with respect to determining the causes of CTS, including that repetitiveness appeared to be a stronger risk factor than force, that the specific situation of the worker must be considered, that generalizations based on assessment of relative risks and statistical trends, while adequate for summarizing the large population experience, could result in erroneous determinations as to causation, that a common sense approach should be applied to each worker's problem, and that the temporal relationships between suspect activities and symptoms of CTS often provide the best clues to questions of causation.

The representative submitted that it is erroneous to say that specific movements and causes, as outlined in the April 2, 2015 decision, are the only ones required for the development of CTS. He noted that there is literature which supports both sides of the argument as to whether or not computer use causes CTS, and the literature which supports the development of CTS in computer users should not be ignored.

The representative noted that the treating physician had stated in his April 28, 2015 letter that he and the orthopedic surgeon were in agreement that the workplace environment was directly attributable to symptoms. The treating physician went on to state that work was further exacerbating her symptoms and opined that the severe CTS on the right-hand side was directly attributable to the worker's work.

In conclusion, the representative contended that the WCB made an error in arriving at its decision. It did not apply a common sense approach, but generalized based on its assessment of relative risks and statistical trends. He submitted that based on the evidence, the opinion of the treating physician, and the balance of probabilities, there was a causative connection between the worker's symptoms and her workplace duties. As such, the definition of accident in subsection 1(1) of the Act had been satisfied and the claim was acceptable.

Employer's Position

The employer was represented by an advocate and its WCB Coordinator. The employer's position was that the worker's CTS was not caused by her job duties and the claim is not acceptable.

The employer's advocate submitted that extensive recent research has shown that the link between the development of CTS and employment activities is tenuous at best, and even then, would only relate to some occupations, such as working with vibratory tools, or working in both a highly forceful and repetitive environment with the wrist in an awkward position. Although computer use may entail repetition, it does not involve forceful work, and is not generally considered to be a causative factor in the development of CTS. The advocate stated that there are studies to back this up, which have shown that workers who use computers heavily have no increased risk of CTS. The advocate noted that the appeal decision which the worker's representative had cited was from 13 years ago and based on research from 1993, and that more recent appeal decisions had taken into account the more recent research regarding CTS factors.

The advocate recognized that each case is to be considered on its own merits, but noted that decisions have been made consistently that show the occupational factors most commonly accepted as being associated with CTS include a wrist injury, frequent use of vibrating hand tools, or any repetitive forceful motion with the wrist bent, especially when done for prolonged periods of time.

It was submitted that not only is typing not forceful work, but the worker wore wrist splints since January 2014, which kept her wrists in a neutral position. She had two ergonomic assessments, one of which was on January 7, 2014, and changes were made within a month. She attributed her condition to an increase in her workload in May 2014, but that was a short-term situation which lasted about two months while they were temporarily short-staffed. On April 28, 2015, her doctor indicated that her CTS had worsened, and was worse on the right hand. Thus, despite the ergonomic changes, and wearing a wrist splint which immobilized her wrist, keeping it in a neutral position, and with the increase in workload long past, the worker's situation worsened considerably.

While the worker said that her condition developed shortly after she began her position, the advocate submitted that this was merely coincidental. Simply because one thing happens after another does not mean that the first event caused the second. The condition could simply be idiopathic or due to a number of other risk factors. The worker's difficulties may actually have preceded her employment, given that the specialist had noted in January 2015 that the worker had right-hand numbness for one to five years, which came and went.

The advocate noted that even though the worker was requesting acceptance for her right hand CTS only, she initially complained about CTS in both wrists and has the condition in her left hand as well. If entering numbers with the right hand was the cause of her right CTS, how could one explain the fact that her condition is bilateral? Similarly, how could one explain that, despite ergonomic changes and wearing splints, her right hand deteriorated significantly in 2015 while her left hand improved? In the employer's submission, this showed that there was no relationship to work activities.

In conclusion, the advocate stated that the employer did not believe, on a balance of probabilities, that there was a link between the development of the worker's bilateral CTS and her employment duties, and asked that the appeal be dismissed.

Analysis

The issue on this appeal is whether or not the claim is acceptable. In order for the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's CTS condition was causally related to the performance of her job duties. The panel is unable to make that finding.

At the hearing, the panel carefully reviewed the worker's job duties with her. The worker stated that in her previous position she had not been doing any computer work and had not had problems with her wrist before. She started her new position in October 2013. One of her duties in that position was to go to meetings and take minutes. She would spend an average of 6 hours a week in meetings. She would type the minutes on a laptop. She would also record each meeting on a tape recorder. After the meeting, she would listen to the recording and make adjustments to the minutes. This consisted of filling in blanks or changing words around, and involved minimal typing. On average, the minutes would be 1-2 pages long for a one-hour meeting, and 3-4 pages long for a 3-hour meeting. The worker estimated that she spent a total of about 15 hours a week doing work which was directly related to these meetings.

The worker said that she spent the other 22.5 hours of her 37.5 hour work week entering reports into the computer system. It was here that she said 98% of her job was data entry. The worker said that she had to enter reports into 2 separate databases where a lot of the work involved going from mouse to numbers to keyboard. She said that she would have to enter on average 30-50 sheets a day, and described what that involved. Depending on what other information she had to look for, it could take 5 minutes or up to half an hour to enter a sheet. The worker said that these reports had to be entered immediately. She described the work as being not so much high-paced as never-ending.

In early 2014, the worker started entering an additional set of reports into a different database. She estimated that these reports would take her about 2 minutes each, and she would probably enter 200-300 of them in a 2-week period. She said that this was more just making sure that the databases were up to date, and involved both checking the information that came in and inputting data. She would also have to send out notes or letters, using a template off the computer and filling in the blanks by hand.

The worker said that starting around May 2014, a co-worker was off work for an extended period of time, and for the first 2 months she was doing both the co-worker's job and her own. The co-worker did more data analysis, but had also been entering reports that came in, and the worker ended up doing all of that work as well as any other data entry that the co-worker would normally have done. The worker said that she was still doing her other work, including the meetings, but was more rushed and a lot of her work suffered. She agreed that she was basically just replacing work with other work. She said that even after they had hired someone to do part of her co-worker's job, she still had to pick up whatever that person could not do. She said that for the most part, she was trying to make sure both jobs got done, and had to prioritize. She described work as being not just constant, but hectic or chaotic, and said that she did as much as she could.

On balance, having considered the evidence in its totality, the panel finds that the evidence supports that the worker's job duties did not cause her CTS.

The panel acknowledges the 2003 decision which was raised by the union representative and the literature which is referred to. We note that the literature referenced in support of that decision dates from between 1993 and 2001. It is panel's understanding that current criteria are more reflective of the recent research with respect to occupational causes of CTS.

The evidence shows that there was variety in the worker's job duties. Among other things, she spent more than a third of her time attending meetings and doing tasks that did not involve data entry. With respect to the data entry itself, the evidence indicates that some of the fields would already be filled in, there would be drop-down boxes, the worker would generally not be typing long strings of information, and she would also spend time looking for or checking information. The evidence further indicates that the worker's hands were in a neutral position throughout. There was no evidence of any factors which would put pressure on her wrists or involve forceful or gripping motions. An ergonomic assessment was done and changes were made in January 2014, but these did not identify or relate to significant risk factors which are associated with CTS.

While reference was made to the increase in the worker's workload in May 2014, the panel is not satisfied that increase caused or contributed to her CTS. The panel notes that the information at the hearing was that her work increased in intensity, that she did not do twice as much work but had to prioritize tasks. She might work half an hour over lunch so she did not get too far behind with her work, but did not and could not work overtime. The panel also notes that the increase in workload was temporary, that the worker continued to perform a variety of duties, including attending and taking minutes at meetings, and that her right-hand symptoms continued to get worse even after that situation was past.

The panel notes the statement by the consulting neurologist in his report dated November 20, 2014 that when he saw the worker on January 28, 2014, she had reported "a several month history of right more than left hand pain, numbness, and tingling with nocturnal prominence…" It is the panel's understanding that this description of the onset of symptoms is not consistent with the worker's symptoms being due to a work-related cause, which would take a much longer period of time to develop.

The panel considered the issue of aggravation and whether the worker's job duties aggravated a pre-existing condition, but could not find evidence to support such a proposition. While in the performance of her duties she may have noticed painful symptoms, we do not accept that typing or data entry, alternating between the mouse, the numbers and the keyboard, or work station ergonomics caused a temporary worsening of the worker's condition.

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 and/or left-sided CTS condition. The panel therefore finds that the worker's claim is 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 31st day of May, 2016