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 a right shoulder injury was not compensable. A hearing was held on March 20, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB for a repetitive strain injury that she related to her workplace duties that involving using a keyboard and a mouse. The date of incident was reported as being February 15, 2016 and was reported to the employer on the same day.

The Employer's Incident Report stated that the worker injured her right shoulder area and was not able to lift her arm. The worker sought medical attention and was diagnosed with an injured long head biceps tendon and supraspinatus tendon. She was off work for one week between February 15 and 22 and was referred to physiotherapy. The worker continued to receive treatment and was told that the injury was a result of a repetitive strain. The worker continued to experience pain in her arm and had limited mobility which resulted in days off on March 31 and April 1, 2016.

On April 21, 2016, a WCB adjudicator contacted the worker to obtain further details regarding the nature of her symptoms and a description of her job duties. The mechanism of injury was described as "repetitive strain; overuse of working on keyboard and mouse and her body position sitting with her arms and shoulders being in an unnutral (sic) position all day. No increase to work load/volume/or duties. No new computer program changes."

The WCB obtained medical reports from a hospital facility and a physiotherapist along with right shoulder x-ray results.

On May 6, 2016, the file was referred to the WCB's healthcare branch to obtain a medical opinion regarding the worker's shoulder condition and its relationship to her job duties which were described by the adjudicator as follows:

sitting at a workstation desk working on a computer, duties performed keyboarding, moussing (sic), working on the phone. She is required to work out of office on occasion ½ afternoon a month. She does work 8 hours a day - 5 days a week. There is no reaching or overhead repetitive motion required as part of her job duties.

On May 11, 2016, the WCB consultant stated, in part, that there was no clear diagnosis for the worker's shoulder condition and there did not appear to be a definitive mechanism of injury. The onset of the worker's right shoulder pain occurred when she awoke at home on February 13, 2016.

On June 8, 2016, the worker was advised that based on the file information and WCB medical opinion, a causal connection between the performance of her job duties and shoulder difficulties had not been established. Therefore no responsibility would be accepted for time loss or medical costs associated with her injuries. On June 21, 2015, the worker appealed the decision to Review Office.

In a report dated July 7, 2016, the treating physiotherapist stated:

Her predominant habitual workstation posture is one of sustained mild shoulder abduction [movement above shoulder height]…we know that sustained tensile force placed through a tendon (as is the case when maintaining the shoulder in a degree of abduction) can cause sufficient compressive force on parts of the tendon's capillary network. This can reduce profusion sufficiently that tissue integrity becomes compromised on a microscopic level.

On August 15, 2016, Review Office determined that the worker's claim was not acceptable as it was unable to find that the worker sustained injury to her right shoulder which arose out of and in the course of her employment on or about February 2016.

Review Office referred to the worker's evidence on file that her symptoms began at home on the morning of February 13, 2016, that she had no previous symptoms before this, and that there was no change in her workplace duties. The adjudicator stated "I specifically asked if she performed any repetitive duties which required he (sic) to raise her arm above her head and she stated no." Given the worker's comments to the adjudicator, Review Office was unable to substantiate the physiotherapist's comments of July 7, 2016 that the worker's workstation posture of "sustained mild shoulder abduction [movement above shoulder level]." Review Office stated that it placed greater weight to the WCB medical consultant's opinion outlined on May 11, 2016.

On November 7, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

As the worker was employed by a federal government agency or department at the time of her alleged accident, her claim is adjudicated under the Government Employees Compensation Act ("GECA"), which provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation.

The GECA defines accident as including "a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”) of Manitoba.

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors. The worker is appealing the WCB Review Office decision that her claim for a repetitive strain injury is not acceptable.

Worker's Position

The worker was represented by a union representative. The worker answered questions posed by the panel.

The worker's representative noted that the worker's physiotherapist was supportive of the worker's claim. He noted that the physiotherapist said it’s likely that her work duties are part of the reason that she injured her shoulder.

He advised that there was an ergonomic assessment in 2005 and that since then the worker has been using a keyboard that "…puts your elbows out, which would put stress on your shoulders the whole time that you’re typing or doing your duties."

The worker's representative advised that since the worker has been off work, she’s feeling a lot less pain and discomfort and her shoulder is starting to heal.

The worker's representative advised that it’s the worker's position that her injury was caused from the keyboard and the position of her arms, and stress on her shoulders. He said it is not from raising hers arms above her head.

The worker advised that her physiotherapist sent a letter to her employer suggesting that she change her keyboard to a truly ergonomic keyboard, rather than the one she has used for the last 12 years, in which the elbows are flared out and shoulders are in an abducted position.

In response to information provided by the employer's representative, the worker stated that she is not aware of a recent ergonomic assessment of her workstation. She stated that she was not involved in any recent assessment.

Regarding her job duties, the worker advised that:

My job really consists of sitting at a keyboard, being on a phone, keying and mousing for probably 95 percent of my day. Occasionally, I meet with clients outside the office, but it’s a very minimal part of the job.

She said her job involved:

Phone calls and lots of typing and keying because you have to review every account, and every associated account. We have to do multiple long involved daily entries to explain what is happening on the account, what has happened on the account, and then you have to put a plan of action in place as to what you’re going to proceed with to collect the account.

She said that she typically works on three to five accounts each day and that she does a forensic look which includes past history of the account, what action was taken on the account, whether the client files proper information, whether the client pays the account, what associated accounts they have. She prepares a summary review of each account which can be between two and three pages of typing. She said this would take her approximately two to three hours to complete.

The worker said that she is probably typing and mousing 85 to 90 percent of her day. She said the other percentage of the day is sorting documents, opening mail, printing letters, signing letters and documents. She acknowledged that her job is not straight data entry and that she must read and process information. She also acknowledged that she used the telephone and attended staff meetings and other sessions.

In answer to questions from the panel, the worker described a large file that she had worked on prior to the hearing. She advised that it took her almost the whole day to review the file and prepare three to four pages of notes. She prepared an electronic scratch pad document which was about three to four pages. She also transferred information between the scratchpad and a diary document which was organized in chronological order.

In answer to a question about how many pages of typing she produces in a regular day, she said:

…Well, if you’re doing three or four files, each file three to five pages for each file, three to five pages for each file, all together. And when I say three to five pages, I’m not just talking about keying in my diary, but also creating documents.

The worker advised that she does use templates for some of her work. The worker confirmed that she can work on one large file for a full day or four or five files through the day. She confirmed that she does consult with other staff on files approximately one to two hours per week. She said she uses the phone to locate people, third parties and sources.

The worker confirmed that she has had the same desk for about 4 years and that the desk is adjustable. She advised that her chair has arm rests, so that her arms sit naturally at the correct height. She said that her elbow and shoulder are in an abducted position because they're outside of the keypad. She described the location of her arms when keyboarding.

The worker agreed that with a new keyboard, her mouse is closer into her body, and her elbows are closer to her body.

The worker confirmed that when she left work on the Friday before the incident she had no pain, but when she woke up on Saturday morning, she said that she felt:

…crippled, couldn’t lift my arm, couldn’t do anything. It hurt to move it…

Regarding the sudden onset of the symptoms, the worker said that:

…it’s a repetitive thing that at some point, you know, that straw broke the camel’s back. I mean, I didn’t notice any discomfort that I was cognitive of, whether was there any signs of it, I don’t remember there being any signs of it.

…

Employer's Positon

The employer was represented by a manager and a human resources specialist.

The manager noted that point ten of the job description states that the job can involve repetitive motion using a mouse and keyboard on a regular basis. He also noted that the employer did perform an ergonomic assessment in April of 2016 and that a new keyboard and mouse were recommended. The worker was allowed to select the equipment she wanted.

He also advised that to the employer's knowledge there is no job requirement which involves raising the arms above the head.

Analysis

The worker is appealing the WCB decision that her left shoulder injury is not related to her employment.  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 in other words that the worker's job duties caused her left shoulder injury.  The panel was not able to make this finding.

The panel carefully considered the worker's job duties and her evidence about the way she performs her work.  While the worker estimated that she spends between 85 and 90% of her day typing and using a mouse, the evidence does not support this assertion.  The panel notes that the worker's job is not a data entry job but rather involves multiple tasks including reading, assessing and analyzing detailed information, contacting clients by telephone to discuss their situations and negotiate settlement, and contacting third parties to obtain information about the client.  The worker also attends staff meetings, training sessions and, on occasion, meets with clients offsite.  In terms of using the computer she creates scratchpad documents of three to five pages and diary documents of three to five pages.  She uses the mouse to open and close screens and to drag material to screens.  The panel finds that the actual typing and mousing components are not highly repetitive.

The panel attaches significant weight to the May 11, 2016 opinion of the WCB healthcare consultant.

A diagnosis of right shoulder tendonitis was documented on a February 17/16 physician's report.  A diagnosis of supraspinatus strain/?early adhesive capsulitis was documented by the treating physiotherapist based on a March 31/16 assessment.  The diagnosis related to the right shoulder is not clear.  There does not appear to be a definitive MOI (mechanism of injury).  The onset of right shoulder pain occurred upon waking at home on February 13/16.

…

With respect to the shoulder, the medical literature supports that repetitive use of the arm in sustained awkward positions (specifically such as above shoulder height/overhead) has been associated with the development of certain shoulder pathology (repetitive strain type injuries).  Use of the arm in non-awkward positions, and in a non-repetitive/sustained fashion has not been demonstrated in the medical literature to be associated with the development of shoulder pathology.  Specifically, with respect to keyboarding, the medical literature has not demonstrated an association with this activity and the development of shoulder pathology.

The worker relied upon the opinion of the treating physiotherapist.  The treating physiotherapist opined that the worker:

…does computer related work most of her work-days.  Her predominant habitual workstation posture is one of sustained mild shoulder abduction.  In general terms, we know that sustained tensile force placed through a tendon (as in the case when maintaining the shoulder in a degree of abduction) can cause sufficient compressive force on parts of the tendon's capillary network.  This can reduce profusion sufficiently that tissue integrity becomes compromised on a microscopic level.  This paves the way for progressive micro-injury.  Over the course of time cumulative damage produces symptoms.  Potentially, dysfunction may emerge.

The panel considered the worker's job duties and postures and is not able to find that the job duties involved sustained tensile loading.  The panel also notes that in this case there was no evidence of prior symptoms.  The panel finds that the sudden onset of the symptoms is not consistent with a repetitive injury claim and is not consistent with the process identified by the physiotherapist.  The panel also finds that the mechanism of injury described by the worker, namely her keyboarding duties and the use of the ergonomic keyboard, would be unlikely to cause the tear as shown on the October 2016 MRI.

The panel finds, on a balance of probabilities, that the worker's shoulder injury did not arise out of and in the course of her employment and that her claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 24th day of April, 2017