Decision #92/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on April 17, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
In a Worker Incident Report dated April 24, 2017, the worker reported injuring her right wrist in an incident on February 1, 2017. She advised that the reason there was a delay in reporting her injury was that she had adjusted her keyboard before and thought it was fine.
The Employer's Accident Report indicates that the accident was reported on April 18, 2017. The accident was described in that report as:
Worker reports in February 2017, she had problems with her work station which caused her right wrist to hurt. She adjusted her keyboard and it became better. Worker reports she has a foam wrist rest in front of the keyboard and mouse. Worker reports it is a shared area but has her own desk.
On Wed [April] 12, after typing for a while she had pain in her right wrist. She adjusted the keyboard tray but her pain did not improve. Worker rested over the long weekend and came back to work on Tues April 18. Within half an hour of typing, her pain started again.
[Worker] sought medical attention on April 24.
The worker saw her doctor on April 24, 2017 and was diagnosed with de Quervain's tenosynovitis and ulnar neuropathy of her right wrist. The worker was advised to avoid pressure at her elbow and was prescribed a thumb spica splint.
On May 11, 2017, the worker saw a physiotherapist, and reported that she was feeling almost constant shooting/burning pain along her thumb and forearm, numbness and tingling in her 4th and 5th fingers, and tightness throughout her forearms. The physiotherapist provided a diagnosis of de Quervain's tenosynovitis and ulnar neuropathy, and recommended that the worker continue to wear a brace at work and allow typing breaks as needed.
On May 18, 2017, Compensation Services advised the worker that her claim was not acceptable. Compensation Services advised that after reviewing the information on file, they were unable to establish that a workplace injury had occurred. Compensation Services noted that although the worker's job duties were repetitive, they did not involve high repetition and twisting movements of the forearm or forceful wrist/forearm motions, which would be required for the development of de Quervain's tenosynovitis from work-related factors.
In a telephone conversation on May 24, 2017, the worker stated that the May 18, 2017 decision only spoke to one of the two diagnoses she was provided. On May 31, 2017, Compensation Services advised the worker that after a further full review of information on file, they had determined that her claim for the diagnosis of ulnar neuropathy was also not acceptable. Compensation Services stated that ulnar neuropathy, not unlike de Quervain's tenosynovitis, is an idiopathic condition, with no direct cause, and they could therefore not establish that the worker's right wrist difficulties were related to her workplace duties.
On June 5, 2017, the worker requested reconsideration of Compensation Services' May 18 and May 31, 2017 decisions by Review Office. The worker noted that she felt her injury was caused from the increased typing/computer use and filing over the last few months and the repetitive strain on her wrist and tendons over the last few months of employment.
On July 7, 2017, the employer provided a submission in response to the worker's request for reconsideration, and the worker responded to that submission on July 21, 2017.
On July 25, 2017, Review Office determined that the worker's claim was unacceptable. Review Office acknowledged that an ergonomic assessment was conducted on the worker's workstation which resulted in changes to the set-up. Review Office found, however, that the recommended changes were minor and did not provide a significant impact to her workstation.
With respect to the worker's diagnosis of de Quevain's tenosynovitis, Review Office found that while the worker's job duties did include some grasping and pinching tasks, they were not repetitive or forceful enough to be associated with the development of de Quervain's tenosynovitis.
With respect to the diagnosis of ulnar neuropathy, Review Office noted that the majority of diagnoses of ulnar neuropathy relate to the entrapment of the ulnar nerve at the elbow and that although the neuropathy location was not clearly stated, the treating physician did say the worker should avoid pressure at the elbows, suggesting that the elbow was the affected area. Review Office did not find, however, that any of the worker's job duties would contribute to this diagnosis.
On October 12, 2017, the worker's representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.
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 that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the 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.
WCB Policy 44.05, Arising Out of and in the Course of Employment, addresses the interpretation of the phrase "arising out of, and in the course of, employment," and states, in part, as follows:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The worker was assisted by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation to the panel on the worker's behalf. The worker responded to questions from the worker advisor and the panel.
The worker's position was that her diagnoses of de Quervain's tenosynovitis and ulnar neuropathy were associated with the poor ergonomics of her workstation as well as the excessive filing and sorting duties she performed in February and March 2017, and that the claim is therefore acceptable.
In response to questions, the worker described her workstation, her various work duties, the onset of her symptoms, her ergonomic assessments and changes made as a result, her medical assessments and treatments.
It was submitted that as the worker had no arm rests on her chair, she had to rest her arm and wrist on the keyboard tray. With this added weight, the tray would tilt downward, causing her wrists to bend upward in an awkward position. The worker would be typing in this position for several hours at a time. The worker would also use her right thumb to hit the spacebar hundreds of times a day. Moving her thumb away from the palm of her hand with the wrist hyperextended put strain on her wrist and tendons.
It was further submitted that the massive amount of filing and sorting which the worker did in February and March 2017 contributed to her injury. The worker used a pinching/grasping movement with her right thumb and index finger to file and sort, which put additional stress on her right thumb and wrist.
The worker advisor referred to medical literature which was submitted in advance of the hearing, dealing with the causes of de Quervain's tenosynovitis and ulnar neuropathy. The worker advisor noted the literature on de Quervain's tenosynovitis states that the main cause for the condition is overuse of the tendons attached to the muscle of the wrist from repeating the same motion day after day; and the literature on ulnar neuropathy states that overuse of the triceps muscle from repeated stress and poor ergonomics is the primary cause for that condition.
The employer was represented by an advocate and its WCB Coordinator. The employer's advocate provided a written submission in advance of the hearing and made an oral submission to the panel.
The employer's position was that there was no connection between the worker's work activities or her office environment and her two diagnoses of de Quervain's tenosynovitis and ulnar neuropathy, and that the appeal should be dismissed.
The employer's advocate referred to two Appeal Commission decisions which she had provided in advance of the hearing. She acknowledged that each case is considered on its merits, but submitted that the decisions were nevertheless germane and validated the employer's position that computer use, typing, mousing, or a less than perfectly ideal workstation do not cause these conditions. The employer's advocate observed that the medical literature generally does not indicate that the worker's conditions are caused by repetitive activity.
It was submitted that doctors are not quite sure what causes de Quervain's tenosynovitis and ulnar neuropathy; both conditions are often considered idiopathic. It was noted that there are certain risk factors for each. When considering the nature of the worker's job duties and the risk factors associated with the development of the worker's conditions, however, the employer did not believe that there is a connection between the two.
In conclusion, the employer's advocate acknowledged that the worker was an excellent worker, but stated that they simply did not believe there was a connection between the development of the two conditions and her work activities, and the appeal should be dismissed.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of her employment. In other words, the panel must find that the worker's de Quervain's tenosynovitis and/or ulnar neuropathy arose out of and in the course of her work duties. The panel is not able to make that finding, for the reasons that follow.
The panel carefully questioned the worker with respect to her workstation and job duties.
The panel finds, on a balance of probabilities, that the evidence does not support the worker's position that her job duties of typing and filing contributed to her diagnosis of de Quervain's tenosynovitis. With respect to filing, the worker's evidence was that she was tasked with sorting through papers from filing cabinets and putting them in boxes. The worker said that she did this for two weeks straight at the beginning of March 2017, which the panel notes was after the February 1, 2017 date of incident as reported in her Worker Incident Report. The evidence indicates that during those two weeks in March, the worker would take piles of paper from the filing cabinets and sort through them at her desk. The evidence indicated that the worker could work at her own pace, and filled eight boxes of paper in one week, or one box every five hours.
The worker also relied on the 90% of her day that she said she spent typing. Her evidence indicated that this involved a variety of different types of tasks, where she would sometimes be doing data entry, and other times be doing work which involved thinking and adding value, such as comments, notes, corrections or formatting, to what she was typing. The worker's evidence was that it was while typing that the keyboard would tilt, resulting in her wrists being in an awkward upward position. The worker also indicated that she could adjust the keyboard tray and move it back to a neutral position, and would do so every couple of hours.
The panel notes that the risk factors or criteria for de Quervain's tenosynovitis as set out in the literature and the Appeal Commission decisions provided by the parties were similar, and included forceful and repetitive wrist or thumb movements, or gripping, grasping, clenching, pinching or wringing one's hands. When asked which tasks would fit those criteria, the worker stated that:
The gripping and grasping would be when I was filing, sorting through the paper, holding on to them, or pulling them from the cabinet. While typing, de Quervain's is also noted, the repetitive movement of your thumb. It was explained to me that it's actually the movement of your thumb away from the centre of your palm. That type of activity can happen numerous times, but while typing, you're hitting the spacebar subconsciously.
Based on the information before us, including the worker's description of her positioning and movements as she was flipping through the papers from the filing cabinet to sort them, the panel is satisfied that there was no gripping or grasping involved in this task. In this, as in other areas, the worker was changing up her tasks and moderating her positions over the course of a day. Even when typing for an eight-hour period, there was variety in the work being done. The panel is unable to find that there is sufficient evidence to support a finding of de Quervain's tenosynovitis as a compensable injury.
The panel further finds, on a balance of probabilities, that the evidence does not support that the ergonomic set-up of the worker's desk contributed to her diagnosis of ulnar neuropathy. The worker acknowledged that the issue of ulnar neuropathy related to the 10% of the day where she was not typing. The worker indicated that she did a limited amount of writing, which consisted of taking minutes for meetings which would be maybe two or three pages long. Some weeks she would have two or three meetings, while others she might not have any or just one. The worker acknowledged that while her doctor had equated her symptoms to resting her elbows on her desk or a flat surface, she did not do much writing at her desk, and this was not a big part of her day.
The panel notes that the risk factors or criteria for ulnar neuropathy as set out in the literature and the Appeal Commission decisions provided by the parties were also similar and talked of direct weight being placed on the elbow to support a compensable injury. In terms of which tasks would fall within those criteria, the worker stated that:
…while you're sitting, you're thinking or you're writing or you're doing this motion where your elbow is actually flat on the table that 10 percent of the time, that's what I’m referencing.
Based on our review of all of the information before us, the panel is unable to find that the evidence supports a finding of ulnar neuropathy as a compensable injury.
The panel has considered the most recent report from the worker's treating physician, dated August 3, 2017, in which the physician stated:
[The worker's] symptoms developed while working at [facility] as she was leaning her right elbow on her work desk since her chair had no arm rests. She then developed ulnar nerve neuropathy due to compression of ulnar nerve at right elbow.
[The worker] types 8 hours daily with wrists hyperextended and uses her right thumb to hit the spacebar, which could have caused symptoms of pain at base of thumb/ dequervain's tenosynovitis. She was also doing excessive sorting/ filing over past several months.
As these issues were not present prior to her employment at [facility] six months ago, I would assume poor work related ergonomics have lead to her dequervain's tenosynovitis and ulnar neuropathy.
The panel acknowledges the treating physician's opinion, but is unable to attach much weight to that opinion based on our review of the information which is before us, as the worker's actual job duties, in our view, are substantially different (and less onerous) than those described by the worker's physician.
Based on the foregoing, the panel finds that the worker's de Quervain's tenosynovitis and her ulnar neuropathy did not arise out of and in the course of her work duties, and the worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of June, 2018