The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her lateral epicondylitis condition was not a consequence of her employment duties. A hearing was held on January 10, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's condition of lateral epicondylitis should be accepted as being a consequence of the worker's employment duties.

Decision

That the worker's condition of lateral epicondylitis should not be accepted as being a consequence of the worker's employment duties.

Background

On June 1, 2016, the worker filed a claim with the WCB for difficulties she was experiencing with her right hand, arm and elbow that started to develop on December 15, 2015.  The worker reported that she attended a chiropractor for treatment, and the chiropractor said her condition might be related to a pinched nerve caused by repetitive motion at a computer and to carpal tunnel syndrome.

A Doctor's First Report dated June 22, 2016 noted that the worker was seen for an examination on May 31 and June 16, 2016.  The worker's entrance complaints were described as follows:

[The worker] indicates there has been a sudden increase in workload related to grant applications/reports requiring prolonged periods of data entry, printing and stapling with a heavy stapler.  Her works (sic) station is not adequate for this, is a small, fixed space where she has to lean over all the time to complete her work.  She needs to use the mouse continuously with no room on desk for a wrist rest.  She uses a large, heavy manual stapler.  Her 4th and 5th fingers turn blue at times and become numb.  She has pain in the hand at night with radial side of hand going numb.  She took a few days off work in early June with improvement in all her symptoms.  Upon returning to work and resuming her duties symptoms recurred. 

The treating physician reported that the worker had evidence of mild osteoarthritis in her fingers.  The diagnosis outlined was possible carpal tunnel syndrome, ulnar nerve entrapment, tennis elbow, and muscle strain.

On June 20, 2016, the worker was seen by a physiotherapist for an initial assessment.  The diagnosis outlined by the physiotherapist was right lateral epicondylitis, right de Quervain's tenosynovitis, and ulnar nerve irritation. 

On June 29, 2016, the treating chiropractor submitted a report to the WCB, which included the following description of the injury, authored by the worker:

In December when my reporting changed for month end at work, my mouse, keyboard and stapling increased a significant amount.  December 15th my thumb started to hurt and I could barely put any pressure using it as well my fingers were starting to tingle and fall asleep.  Gradually it all got worse in the following months.  My last two fingers even started to turn blue and very cold.  Lots of pain in my entire hand, wrist and going to my elbow area and up my arm.  Sore shoulders and neck pain due to increase in workload.  I was not able to grip things, open jars and started to drop things.  Last two months have been extremely bad.  Been to see OT for splints and was put on leave from work from June 15th to July 4th.  I told Workers comp that I wasn't sure if it was tendonitis or carpal tunnel as I am still waiting to go for nerve conduction testing.

In late June 2016, a WCB adjudicator spoke with the worker and discussed the job duties that led to her right arm symptoms. 

On June 28, 2016, the employer's representative agreed with the tasks as outlined by the worker, but was uncertain of the frequency of those tasks.  The representative advised that the worker's workload had increased.  A lot of tasks had been "dumped" on the worker, but the duties were still consistent with her job description.  The worker used a stapler which she had to grip.  It weighed one pound.  The work area was not the best set-up.  There were drawers under the desk where she would sit.  There were things that could be moved, such as a kettle.  The worker had requested a stand-up desk. 

On July 4, 2016, an x-ray of the right hand showed no bone or joint abnormality.  An x-ray of the cervical spine showed normal cervical alignment with minimal narrowing of a few mid discs.  No facet abnormality was identified.

On July 6, 2016, a WCB medical advisor stated the current diagnoses appeared to be de Quervain's tenosynovitis (tendonopathy of the thumb) and lateral epicondylitis (tennis elbow).

On July 12, 2016, the worker's claim for compensation was denied, as the WCB found that the worker's job duties did not involve high repetition and twisting movements of the forearm or forceful wrist/forearm motions, which would be required for the development of lateral epicondylitis or de Quervain's tenosynovitis.

On August 12, 2016, the worker provided the WCB with photographs of both her hands as well as a further description of her work duties to support that her injuries were work-related and were not due to lifestyle/overuse of her forearm muscles at home.  On August 16, 2016, the WCB advised the worker that the new information had been considered and that no change would be made to the decision dated July 12, 2016.  On August 19, 2016, the worker appealed the July 12 decision to Review Office.

On October 5, 2016, a WCB plastic surgery consultant opined:

De Quervain's tenosynovitis may be associated with activities characterized by repetitive firmly resisted pinching or grasping involving the thumb.  The work duties described on file of repetitive stapling with a 1 lb stapler of approximately 100 stacks of sheets per day for 5 days per month, appear concordant with repetitive firmly resisted pinching with the right thumb.

Lateral epicondylitis/osis is typically associated with activities characterized by repetitive firmly resisted grasping and twisting (supination) of the forearm typically involving weight and/or force, a matter which does not appear concordant with the work duties described on file. 

On October 6, 2016, Review Office advised the worker that her claim for compensation was acceptable.  Review Office determined that the duties performed by the worker had caused or contributed to her injury.  Review Office found that there was a change in the actual level of duties the worker performed and this had increased from what she had done before.  The worker was not using the best ergonomic positioning while performing this action, but this was not the only contributing factor.  Review Office accepted the opinion of the WCB plastic surgery consultant as outlined on October 5, 2016.  On October 19, 2016, the worker appealed Review Office's decision to the Appeal Commission. 

In a memo to file dated October 24, 2016, Review Office clarified that the condition that was determined to be acceptable was de Quervain's tenosynovitis of the right hand.  The condition of right lateral epicondylitis was not determined to be associated with the workplace activity.

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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Worker's Position

The worker was self-represented, and was accompanied a family member, who attended the hearing as an observer.  The worker provided a written submission in advance of the hearing, and made a presentation to the panel.

The worker submitted that her lateral epicondylitis was caused by her work duties, and in particular, by an increase in her workload due to changes in procedures and an internal audit in December 2015, as well as the set-up of her desk/workstation.

The worker stated that she was off work for six months in 2015 due to unrelated issues.  While she was away, the majority of her work duties, excluding payroll, were not covered.  She returned to work gradually, and by December 2015, was back to working almost full-time.  At that point, there was an internal audit.  As a result of the audit, the worker had to go back and complete six months' worth of month-ends for close to 100 different grants or accounts in less than three weeks, along with all her other work responsibilities.  Month-end reporting consisted of compiling the account data in numerous different computer programs into a spreadsheet for each of the accounts, printing the sheets from the different programs and stapling them together for each account, each month.  The worker had to work overtime and through lunches and breaks to meet the deadline for the internal audit.

The worker submitted that due to the uncomfortable, cramped and inefficient set-up of her desk, she had to have her hand and arm in a constant state of flex.  The worker explained that what she meant when she said holding her hand and arm in a state of flex, was that when she was mousing, her whole arm, from the knuckles to her shoulder, would be in a constant state of tension, so she would not hit her wrist or hand on the corner of the desk.  The worker requested and went through several ergonomic assessments, which were not acted upon.  At the same time, she learned that the process she used for stapling was incorrect.  The worker said she had more recently been using an electric stapler, which had helped.

The worker stated that she never had any issues with her hand, arm or elbow before, and had submitted a letter from the attending physician which stated that there were no other lifestyle issues in the worker's history that would have contributed to the symptoms she experienced.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker's condition of lateral epicondylitis should be accepted as being a consequence of the worker's employment duties.  For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's lateral epicondylitis was causally related to the performance of her employment duties.  The panel is unable to make that finding, for the reasons that follow.

In response to questions from the panel, the worker described in detail the different tasks she performed, the frequency and sequencing of those tasks, her work area, and her posture or positioning while she was doing her work.  With respect to the internal audit in December 2015, the worker said she would have spent probably 75% of her time or six hours a day over a three week period working on the month-end reports.  She estimated that 30% of that time would have been spent keyboarding, 50% mousing or clicking, 10% stapling and 10% filing and copying.  In terms of her other work responsibilities, the worker described a number of other duties which she had to perform, including all the front desk reception duties, answering the phone for an average of 30 calls a day, payroll, bookings, billings, ordering supplies, and dealing with shipments and courier deliveries.  The worker said that while she was working on the internal audit, she only did the most critical things that had to be done.

In her October 5, 2016 opinion, the WCB medical consultant described lateral epicondylitis as being typically associated with activities characterized by repetitive firmly resisted grasping and twisting (supination) of the forearm, usually involving weight and/or force.  The panel accepts that description and notes that it is consistent with our understanding of the criteria or risk factors associated with lateral epicondylitis.

The panel carefully considered the nature of the worker's job requirements and the time spent performing her duties.  Based on our review of all of the information, on file and at the hearing, the panel is of the view that the activities which the worker was performing were generally not of

the type which would cause damage to the lateral epicondyle.  In our view, there was a general absence of forceful gripping and twisting or supination of the forearm.

The panel notes that the worker relied in particular on the repetitive nature of her duties and the amount of work she had to do over the three week period in December 2015.  The panel recognizes that the work which the worker was performing in December 2015 was relatively fast-paced and stressful, and that the worker's duties involved a considerable amount of typing and mousing.  The evidence indicates, however, that the typing and mousing were not performed continuously for an extended period of time, but were interspersed with each other and with the other tasks involved in completing each month-end, as well as with the significant variety of other activities which the worker was required to perform throughout the day. 

At the hearing, the worker agreed that her wrist and arm were essentially in a neutral position when she was working at the computer.  She also agreed that mousing would not usually be connected to lateral epicondylitis, but said that the difference in this case was that her hand was in a complete tension the entire time she was working because she was afraid of hitting it on the table.  In our view, the worker's having her hand in a state of tension was not enough to meet the criteria for the development of lateral epicondylitis.

The worker also pointed to grabbing the stapler when she was doing paperwork and twisting and picking up the stapler as having caused her condition.  In the panel's view, stapling as described by the worker at the hearing, using a 1 lb. manual stapler, did not involve firm or repetitive grasping.  In addition, the worker's evidence was that based on the process she followed, there would generally have been a gap in time of between 2 to 20 or 30 minutes between each staple.  The worker further indicated that in some instances, she would have used the larger industrial stapler or a clip to hold pages together, instead of the manual stapler.

With respect to the ergonomics of the work space, the panel noted that outside of changing the mouse the worker used, most of the recommended changes seemed to be directed towards addressing problems outside the arm.  In our view, the constricted desk area and awkward positioning addressed by the changes would not be considered a risk factor associated with lateral epicondylitis.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right lateral epicondylitis was not causally related to the performance of her work duties.

The panel therefore finds that the worker's condition of lateral epicondylitis should not be accepted as being a consequence of the worker's employment duties.

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
(on behalf of the panel)

Signed at Winnipeg this 10th day of March, 2017