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 compensation was not acceptable. A hearing was held on March 2, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On March 9, 2016, the worker filed a claim with the WCB for right hand, wrist and forearm difficulties that she related to the use of a thumb roller mouse. The worker reported that she is right handed and that she worked eight hours a day, five days a week, sitting at a computer. She said she first noticed an aching in her right wrist and thumb area on March 2, 2016.

The Employer's Incident Report dated March 11, 2016, indicated that the worker reported right hand and wrist problems on March 9, 2016 from rolling the mouse with her thumb. She then changed from a roller mouse to a regular mouse and her condition became worse.

On March 16, 2016, the employer advised the WCB that they were protesting the claim as there was no specific incident as the worker was doing her regular duties and she delayed reporting by 7 days.

On March 21, 2016, a WCB adjudicator spoke with the worker to gather information related to the area of injury, symptom onset, reporting of the injury to her employer and the duties involved in her position as a scheduling assistant.

In a decision dated March 30, 2016, the WCB denied the worker's claim based on the following rationale:

There is no information on file that indicates a work place injury occurred. Although you suffer from Tenosynovitis, there is no evidence to support the cause is in fact work related. There are many other factors that contribute to such an injury, as WCB cannot establish a mechanism of injury, we cannot relate you (sic) injury to your work place accident.

On June 24, 2016, a worker advisor submitted to Review Office that the decision of March 30, 2016 should be reversed. The worker advisor stated that the worker's job duties involved using a thumb roller mouse and to a somewhat lesser degree typing, and was the cause of her condition. If Review Office determined that the worker's job duties did not play a material role in the initial development of this condition, it was suggested that the claim be accepted on the basis that the worker's condition was temporarily aggravated by continuing to perform her regular duties from March 2 up to and including March 10, 2016.

On August 16, 2016, the employer's representative submitted to Review Office that there was no evidence to support the worker's right thumb tenosynovitis condition arose out of and in the course of employment.

On August 26, 2016, Review Office determined that the worker's claim was not acceptable as it was unable to find a causal connection between her right wrist and thumb difficulties to her job duties and that an accident had not been established. Review Office noted that the nature of the worker's job duties did not involve the risk factors for the development of tenosynovitis. It found that the worker's tenosynovitis was not made worse by aggravation of the condition due to her work, but rather her symptoms were present at work and are not considered arising out of and in the course of employment. On September 1, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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:

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, subject to the following subsections.

Accident is defined in subsection 1(1) of the Act, which provides as follows:

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

(a) a willful and intentional act that is not the act of the worker; (b) any

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

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

(c) an occupational disease,

and as a result of which a worker is injured;

The WCB's Board of Directors has established WCB Policy 44.05, Arising Out of and in the Course of Employment, which deals with the determination of whether an accident has arisen out of and in the course of employment. The worker is appealing the WCB Review Office decision that her claim is not acceptable.

Worker's Position

The worker was represented by a worker advisor who made a submission on the worker's behalf. The worker answered questions from her representative and the panel.

The worker's representative submitted that:

the worker’s position is that her job duties, primarily the use of a thumb roller mouse, and to a somewhat lesser extent, typing as a scheduling assistant within a [name] department was the cause of her dominant right-sided tenosynovitis. If, however, this panel determines that the worker’s job duties do not play a material role in the initial development of this condition, we then ask that claim acceptance be granted on the basis that the worker’s condition was temporarily clinically aggravated by continuing to perform her regular duties from March 2nd up to and including March 10, 2016.

The worker's representative noted that in or around the summer of 2015 the task of employee scheduling, which she was responsible for, had changed from a six-week to two-week rotation, meaning less handwriting was required and increased computer use. It was explained that before this time, the task of scheduling employees was documented by hand in scribblers. He also noted that the worker worked one to two additional shifts per month leading up to March of 2016 when her injury occurred.

He submitted that what began as an aching feeling in the wrist and thumb area on March 2 progressed over the course of the next week to include tenderness, decreased strength and swelling in the dorsum thumb area and wrist, as observed on March 10, 2016, by the attending physician.

The worker's representative said that after two weeks off from work, a physician noted the worker’s mobility and grip strength had improved. There was no longer documentation of swelling, and the worker was cleared to resume her regular duties on March 29. He noted that the worker has had no further difficulties with her thumb/wrist since returning to her regular duties on March 29, 2016. He also noted that she no longer uses a thumb roller mouse.

The worker advisor submitted that the rapid resolution of the worker's condition with time away from work, followed by no re-emergence after her return, points to a work-related cause as opposed to the various non-occupational risk factors. He submitted that the worker did not merely experience symptoms at work, but that her condition gradually clinically deteriorated over the course of the next week at work.

In answer to questions, the worker confirmed that the aching at the base of her thumb began on March 2, near noon and that it gradually worsened. She described the pain as being about 4-5 out of 10 when it started, but by the end of the day it was 9 out of 10.

The worker said her job is mostly data entry on a computer. She said that she used monitors and goes back and forth between them. She also noted that she used a mouse with a roller ball which would stick on occasion. She said that she would ice her thumb in the evening and that the pain would decrease. She said the next week she switched to a regular mouse. "It didn’t hurt as much" but by the end of the day her thumb was hurting.

The worker's representative noted that on March 10, the worker saw a physician who noted swelling in the thumb area. The worker advised that she noted swelling in the palm area and on her wrist.

Regarding a pre-existing condition, the worker's representative submitted that when the problem first developed on March 2, this was the onset of the tenosynovitis, and then in terms of aggravation or a pre-existing condition, the worker worked the next week, and theoretically, all of those days, or any one of those days, could be considered the accident date beyond March 2.

With respect to a change in duties that occurred prior to the injury, the worker explained that her job involved making hundreds of hand written entries and later it changed to making computer entries which increased the amount of computer use.

In closing the worker's representative commented that:

An idiopathic onset of this condition, I don’t think that you would see such a quick resolution after being removed from work, and then the condition never coming back again since switching from the thumb roller mouse to a regular one.

Employer's Position

The employer was represented by an advocate and Manager, Human Resources. The employer's representative advised that it is the employer's position that the claim is not acceptable. She noted there were no changes in the worker's job duties or workload to account for the condition.

She disagreed with the worker's position that increased computer use the year before in July or August 2015, when there was a switch from handwritten documentation of employee hours to more computer, use caused the injury. She said there is not a temporal link between the change in job duties and the injury which developed in March of 2016.

The employer's representative referred to the job description on the file which indicated that the worker had a variety of activities, including answering the phone, printing documents and other sedentary duties. She also noted that a March 21, 2016 memorandum on the claim file indicates that the worker takes at least four breaks a day. She also submitted that there are no activities involved in her job duties that require forceful flexion, extension or abduction of the wrist or thumb. She said that:

None of the activities involved in using a mouse or typing or handwriting, or any of the other things mentioned today, are causative factors in the development of de Quervain’s tenosynovitis.

Analysis

The worker appealed the WCB decision that her claim is not acceptable. For the worker's appeal to be approved, the panel must find that the worker sustained an injury by accident arising out of and in the course of her employment, or that she sustained an aggravation of a pre-existing condition.

The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker's right thumb injury did not arise out of and in the course of her employment and did not result from an aggravation of a pre-existing condition. The panel is not able to find a connection between the injury and her employment. While the panel acknowledges the worker's evidence that she first noticed the pain and swelling while at work, this does not mean that the condition is compensable.

Regarding the relationship of the worker's medical diagnosis to her workplace duties, the panel notes that the worker's right thumb pain is described as De Quervain's tenosynovitis. The panel carefully considered the worker's duties and activities at work and was not able to identify any forceful flexion, extension or abduction of the wrist or thumb, which the panel understands to be the potential work-related causes of this condition. Specifically, the panel could not find a connection between the use of the roller mouse and the increased volume of computer keyboard use which occurred with the switch to the computerized system, and the worker's injury. The panel notes that the worker's duties changed a month before the sudden onset of thumb pain and that after the pain commenced she stopped using a roller mouse and started using a regular mouse but that her condition worsened. The panel also notes that the worker used the roller mouse for more than a year before the onset of the thumb pain.

The evidence establishes that the worker's job consists of a variety of duties which are performed over the work day and that, many of the duties do not involve the use of the mouse or keyboard. The worker's duties include reading information on the monitors, taking calls and other interaction with staff, and printing documents. The rotation of these tasks also lead the panel to conclude that the worker's job duties are not highly repetitive in nature.

Regarding the submission that the worker's injury is due to the aggravation of a pre-existing condition, the panel is not able to identify a pre-existing condition or classify the thumb injury as a pre-existing condition, and therefore cannot find an aggravation of such a condition. The panel disagrees with the worker's position that the development of the thumb problem was a pre-existing condition which was worsened by the worker's duties.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of April, 2017