The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on October 5, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The Employer's Incident Report dated July 31, 2014 stated that the worker saw his physician regarding a long-term pain issue with his forearm which apparently had gotten worse with continued keyboarding at work. The worker was advised by his physician to take time off from work and he would be reassessed again on August 12, 2014.

On August 6, 2014, a WCB case manager contacted the worker to discuss his claim. The worker stated that his injury started in his right forearm and that it progressed to his right shoulder. The worker noted that in January 2014 he was moved to make way for new offices and that no ergonomic assessment was done at that time. In March 2014, his arm started to bother him and he was not sure what caused it. In early April 2014, he commenced physiotherapy treatment to try and keep things under control. On May 14, 2014, an ergonomic assessment took place and the required desk changes were done about a week after the assessment. Between July 10 and 24, 2014, he was on holidays and his arm was very sore. On July 29, 2014, he did an interview for a report and took five pages of notes. He could hardly drive home that night because of the pain. When his right arm got bad in April 2014, he started to use his left arm. The physiotherapist was treating his left arm but was mostly focused on his right arm.

Medical information was received from the worker's treating physician for an examination dated August 14, 2014. The diagnosis outlined was myofascial pain secondary to repetitive use.

On August 18, 2014, the treating certified athletic therapist provided details regarding the worker's medical history since July 2013, a description of injury between July 2013 to the present and findings based on the April 7, 2014 initial visit. The diagnosis outlined was severe bilateral forearm tendonopathy with secondary complications arising in the elbow and rotator cuff.

On September 22, 2014, the worker was seen at the WCB's office for a call-in assessment. In response to questions posed by the case manager, the WCB medical advisor stated:

The etiology of forearm tendonopathy is typically straining or micro-tearing of the extensor musculature or flexor musculature. This is represented by swelling, pain, occasional decrease in muscle testing and resolution after removal from the aggravating activities. At this examination, the writer is unable to find objective findings of tendonopathy or another anatomic diagnosis. Based on today's examination and medical information on file, on a purely musculoskeletal basis, the writer is unable to account for the current symptoms as related to an anatomical diagnosis.

Without an anatomical diagnosis the writer would not be able to determine work restrictions and on a medical basis would not recommend limitations at this time.

On September 29, 2014, the WCB received a report from a physical medicine and rehabilitation specialist ("physiatrist") dated September 25, 2014. The physiatrist reported that the worker had myofascial pain syndrome of the medial forearm muscles secondary to repetitive strain which was caused by the poor ergonomics of his work station. She also queried whether the worker had an ulnar neuritis or neuropathy. Further testing was planned which included a referral for EMG and nerve conduction studies.

In a decision dated September 30, 2014, the worker was advised that his claim for compensation was not acceptable as the WCB found no causal connection between his current symptoms and the performance of his job duties. The decision was based on medical information from the treating healthcare providers and the findings at the WCB examination which revealed inconsistencies in findings, inconsistencies in the creation of provocative pain and lack of an anatomical diagnosis.

On December 15, 2014, the worker asked the WCB to reverse its decision based on additional medical information that he received subsequent to the September 30, 2014 decision.

On January 7, 2015, the worker was advised that the additional medical information contained no new evidence to warrant a change to the WCB's original decision.

On February 5, 2015, a worker advisor requested reconsideration of the decision dated September 30, 2014. It was submitted that although the WCB medical advisor could not identify an anatomical diagnosis, the worker's attending physician, specialist and physiotherapist all were able to support the anatomical diagnosis as an extensor/flexor forearm injury due to repetitive strain directly related to the worker's inappropriate workstation. The worker advisor concluded that the file evidence supported an accident under subsection 1(1) of The Workers Compensation Act (the "Act") and that the medical evidence confirmed a relationship between the worker's right forearm injuries and his employment.

Prior to considering the worker's appeal, Review Office obtained additional information regarding the worker's job duties and his work station difficulties.

On March 10, 2015, Review Office asked the WCB's healthcare branch to clarify the causes related to the diagnosis of right posterior interosseous nerve involvement. In a response dated March 13, 2015, the medical advisor stated:

Typically involvement of the right posterior interosseous nerve involves direct trauma to the nerve or narrowing and compression at the arcade of Frohse (the area where the nerve enters the supinator muscle in the flexor aspect of the forearm).

On March 16, 2015, the worker was provided with a copy of the WCB medical opinion dated March 13, 2015 and was asked for comments. A response is on file dated March 19, 2015.

On March 24, 2015, Review Office determined that the worker's claim was not acceptable as it was unable to relate the cause of his bilateral forearm pain, greater on the right, to his job duties, work demands and/or to his ergonomic set up.

On December 14, 2015, the worker advisor asked Review Office to reconsider its decision of March 24, 2015 based on a report from the treating neurologist dated October 22, 2015. The worker advisor submitted that the worker's bilateral ulnar focal neuropathies had been caused by the prolonged awkward positioning of his elbows (not in a neutral position) for a considerable length of time as a result of his employment duties. Therefore his claim should be accepted as the evidence supported the criteria of subsections 1(1) and 4(1) of the Act.

On February 10, 2016, Review Office asked a WCB orthopedic consultant to review the report of October 22, 2015 and answer questions related to the neurologist's diagnosis of bilateral focal ulnar neuropathy. On February 17, 2016, the WCB consultant stated, in part:

The painful symptoms in the proximal forearms is not typical of ulnar neuropathy, although aching in variable sites in the upper limbs is sometimes experienced by some patients with this diagnosis. It is probable that the aching symptoms in the forearms of this worker were related to ulnar neuropathy.

Causes of ulnar neuropathy at the elbow include fracture or dislocation, osteoarthritis, osteophytes at the elbow joint, subluxation of the nerve from the groove at the elbow, direct trauma, and repetitive or prolonged hyperflexion of the elbow. In many cases, the specific cause cannot be determined, and it is termed "idiopathic". In a person with the diagnosis of focal ulnar neuropathy at the elbows, symptoms of pain and sensory disturbance would be expected to be increased by certain activities, such as prolonged hyperflexion of the elbows, or pressure or bumping of the postero-medial aspect of the bent elbow. The latter would be experienced in sitting in a chair with the elbows resting on unpadded arm supports.

The WCB medical opinion was provided to the worker advisor for comment. A response is on file dated February 23, 2016.

In a note to file dated March 11, 2016, Review Office indicated that a worksite visit was held to clarify the worker's workplace ergonomics as they were in May 2014 and the months prior.

On March 11, 2016, Review Office determined that the claim was not acceptable as it did not meet the definition of an "accident" as defined in subsection 1(1) of the Act.

Review Office made reference to the comments made by the WCB medical advisor related to the causes of ulnar neuropathy and noted that there was no indication that the worker was in a position where his elbows were in a hyper-flexed position based on the ergonomic evaluation that was performed in May 2014.

Review Office stated that it was unable to find that the worker's job duties caused the development of his right forearm or left forearm pain or that the diagnosis of ulnar neuropathy at the elbows was caused by his work duties and/or the ergonomic set up of his work station. On March 17, 2016, 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 WCB Board of Directors.

The issue before the panel is whether the worker’s claim is acceptable. 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…(emphasis added)

Subsection 1(1) defines accident:

accident means a chance event occasioned by a physical or natural cause; and includes,

(b) any

(i) event arising out of and in the course of the employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment...

The key issue to be determined by the panel deals with causation and whether the worker’s upper body injury arose out of and in the course of his employment.

Worker's Position

The worker was represented by a worker advisor. The worker advisor submitted that the evidence shows, on a balance of probabilities, that the worker's upper body condition was caused by his workplace and workplace duties.

She explained that the worker began to have symptoms in his right forearm over a four month period when he was extremely busy with work duties. She noted that at this time, the worker moved to a new workstation which was not ergonomically correct. She advised that the worker complained about problems with the set-up of the workstation but continued to work, resulting in worsening of his symptoms.

The worker advised that he changed offices and shortly after he noticed pain in his forearm. He said that his workstation was not ergonomically appropriate. He advised his manager about the workstation set-up and injury, however, the employer did not promptly assess and adjust the workstation. He worked at the workstation for over four months. He said he was particularly busy over this time period, and worked some overtime. His work duties included significant use of his computer, including use of the mouse, pasting, cutting, and keyboarding. He also conducted some interviews which involved hand writing notes.

The worker advised that he frequently complained about his workstation and the problems it was causing.

The worker said that he developed pain in his right forearm due to the poor workstation and workload. He advised that the pain was in his right forearm from the midpoint to the elbow. The worker described the pain as:

It was a deep aching pain from just under my right elbow, in that forearm area towards the wrist, maybe about halfway to two-thirds towards the wrist from the elbow on my right arm.

It also created some, a bit of numbness and strange feelings in sort of my bottom fingers, the bottom part of my hand, but the primary pain was in the forearm.

The worker's representative submitted that the opinions of a WCB orthopedic consultant and the independent neurologist support the worker's position that his injury was work related. Regarding the WCB orthopedic consultant she stated that:

[WCB orthopedic consultant] confirmed that the aching symptoms in the forearm of [worker] were related to ulnar neuropathy. It is our position that this medical opinion confirms that the disabling symptoms [worker] was experiencing while he was trying to complete the overload of duties at this time, is connected to the diagnosis, and this diagnosis is supported by ergonomist related to the improper set up of the workstation.

In answer to a question, the worker's representative confirmed that the medical condition which the worker is relating to his employment is focal ulnar neuropathy.

The worker advised that the neurologist told him that hyperflexion varies from person to person, but generally anything more than 90 degrees can cause the problem. He demonstrated, to the panel, the extent to which he bent his arm at the elbow.

He said that Review Office disagreed with this explanation and indicated that hyperflexion is bent all the way to the extreme.

In answer to the amount of time during the day he switches positon he replied that:

I only switched position, I think, when I got uncomfortable in one, right? And then I would switch, but it was basically a period of time where I was mostly glued to my desk. Like, a quite an abnormal amount of time compared to the rest of the year, where I was at my desk hammering away at this stuff and, but I mean there were periods where clearly I would move in and I would get off the arm thing and I would have my elbow more extremely bent. That was one of the three scenarios that I would have it at.

He estimated that he was using the mouse for two thirds of his time at the computer.

In reply to the evidence that the worker's problems worsened after his workstation was adjusted, the worker advised:

Because it was too late, because it was the damage had been done. It was the pain just wouldn’t go away after that…

Regarding symptoms developing on the worker's left side, he advised that the neurologist said the left arm got sore because he used it in place of his right arm.

The worker advised that the physicians never attended at his office and viewed his workstation. He said they based their opinions on how he demonstrated the positions that his arms were in at work.

The worker reviewed photos of a work station which was similar to the work station he was using when his problems began. He described his posture in the various photos.

The worker confirmed that forearm pain was the functional issue that wound up affecting his ability to do his job.

The worker's representative commented that Review Office did not permit the ergonomic specialist, who was involved in the initial assessment, to provide her opinion during the worksite visit. She submitted that the Review Office assessment was not complete and was not a fair review of the case.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is claim acceptability. In order for the worker's appeal to be successful, the panel must find that the worker’s injury was caused, aggravated or enhanced by an accident that arose out of and in the course of his employment. In other words, that the worker's job duties, including working conditions, with the employer were the cause of his injury or aggravated/enhanced his pre-existing condition.

In making its decision, the panel has considered the information on the claim file and the evidence provided at the hearing. At the hearing, the panel asked the worker and his representative many questions about the workstation and injury, reviewed the photos of a workstation and received the worker's description of his duties and the workstation.

On a balance of probabilities, the panel finds that the worker's claim is not acceptable. The panel is not able to relate the worker's injuries to his job duties and workstation. In reaching this decision the panel notes the following:

• the accepted diagnosis is bilateral focal ulnar neuropathy
• the worker described the pain from his condition as being in the middle of his forearm
• the worker demonstrated the postures and movements which the worker believes are causative of his condition
• the worker advised that his symptoms spread up his arm towards his shoulder and to his left arm

Although the worker described postures as involving hyperflexion, the panel is unable to make a finding that the postures in the photos and demonstrated by the worker at the hearing involved significant hyperflexion. Specifically, the panel found there was little point of contact and no direct weight on his elbow to support a compressive type injury to the ulnar nerve. The panel notes that the worker pointed to the middle of the forearm being the spot where he felt the pain, however, he advised the case manager that it was four inches from his wrist. The panel also notes that the worker's duties, even during the busy period, included a significant variety of tasks beyond using the mouse.

As to the worker's focus on the amount of mousing done as part of his job duties and the delayed ergonomic assessments when he changed locations, the panel finds that mousing is not specifically causative of focal ulnar neuropathy and that the ergonomic assessment did not identify or address ergonomic issues related to the development or remediation of ulnar neuropathy issues.

The panel notes and adopts the etiological factors for the development of focal ulnar neuropathy that were identified by the WCB orthopedic consultant on February 17, 2016. After careful consideration of the worker's job duties and worksite, the panel finds that the worker's job duties were not consistent with the known etiologies of his diagnosed medical condition.

The panel finds, on a balance of probabilities, that worker’s injury was not caused, aggravated or enhanced by an accident that arose out of and in the course of his employment. The panel is not able to find factors in his employment which would cause the spread of the worker's symptoms up his right arm and to his left arm. The panel finds the claim is not acceptable. 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
(on behalf of the panel)

Signed at Winnipeg this 15th day of November, 2016