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 is not acceptable. A hearing was held on May 24, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On December 8, 2016, the worker filed a claim for an injury to her right hand, with a listed incident date of November 12, 2016. The worker, a resource coordinator, attributed her injury to "Repetitive use of hand when I use the mouse." The worker reported that she had been in her job since October 2012, but there had been a change in her job duties around the time her symptoms started, and her workload had tripled since August 15, 2016.

The employer filed an Employer's Accident Report on December 12, 2016, indicating that the worker reported the incident on December 5, 2016. The employer stated that the worker reported she was very busy at work doing tasks such as scheduling, checking visits, filing, payroll and covering for other workers. She was on the computer for a long duration using her mouse and keyboard. The worker reported she had pain in her right hand, from her thumb to her wrist because of excessive use of the mouse, and that the area swelled after work.

On December 6, 2016, the worker saw her family physician, who diagnosed her with a right thumb strain injury. The physician recommended physiotherapy, a thumb brace and an ergonomic assessment, and noted that the worker was able to work, but should not overuse her right thumb and right hand.

At an initial physiotherapy appointment on December 7, 2016, the worker described her injury as "Insidious onset of pain on R [right] thumb while using a mouse." The physiotherapist diagnosed the worker with De Quervain's tenosynovitis and recommended that she stay off work for one week.

On December 21, 2016, a WCB adjudicator spoke with the worker to gather information, including information with respect to her duties, her daily activities, the reported change in her duties, the area of injury and her symptom onset and progression.

On January 5, 2017, Compensation Services advised the worker that her claim was not acceptable. Compensation Services stated that there was no information on the file which indicated that a workplace injury occurred. Compensation Services acknowledged that the worker was diagnosed with wrist/thumb tenosynovitis, but found no evidence to support that the injury was related to the worker's job duties.

On May 3, 2017, a worker advisor acting on behalf of the worker requested that Review Office reconsider Compensation Services' decision. The worker advisor submitted that a change in the worker's job duties which required significantly more use of her right thumb and hand had resulted in, or at least contributed to, the development of her confirmed diagnosis.

On May 3, 2017, Review Office returned the worker's claim file to Compensation Services to further investigate the claim and review the decision.

Compensation Services subsequently gathered further information from the employer, a co-worker and the worker's concurrent employer. On June 8, 2017, following their review of all of the information obtained and on file, Compensation Services advised the worker that there was no change to their January 5, 2017 decision.

On July 7, 2017, the worker advisor renewed their request that Review Office reconsider Compensation Services' decision. The employer provided a submission in response to the worker's request for reconsideration and the worker advisor responded to that submission.

On October 6, 2017, Review Office determined that the claim was not acceptable. Review Office accepted that the worker was diagnosed with de Quervain's tenosynovitis. Review Office noted that de Quervain's tenosynovitis is typically associated with activities involving a combination of forceful gripping and twisting of the wrist and repetitive movement. They found that any gripping of a computer mouse would be considered light, and the movement of the computer mouse throughout the workday would not be excessive enough to cause changes to the worker's tendon sheath or tendons, impacting the functioning of her right thumb or hand. Review Office therefore determined that the worker's injury was not caused by the performance of her job duties.

On December 1, 2017, the worker advisor appealed the Review Office 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 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, 

(b) any 

(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 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.

Worker's Position

The worker was assisted by a worker advisor and was accompanied by a friend at the hearing. The worker advisor made a presentation to the panel, and the worker responded to questions from the worker advisor and the panel.

The worker's position was that her right thumb or wrist pain and difficulties, and her confirmed diagnosis of right thumb/wrist strain and de Quervain's tenosynovitis, arose out of and in the course of her employment, and her claim is acceptable.

The worker advisor submitted that ergonomic information on websites states that overuse of the wrist is the most common cause of de Quervain's tenosynovitis, and that the evidence in the worker's case supports that an overuse injury occurred.

It was noted that while the employer's representative had provided copies of two previous Appeal Commission decisions to support that the claim was not acceptable, each case must be decided on its merits. The worker advisor further stated that the Appeal Commission decisions were distinguishable on their facts, as unlike in those cases, there was a connection in this case between the worker's injury and her employment duties and confirmation that there was a change in her workload.

It was submitted that the worker had been performing the same duties for three years without any difficulties until there was a restructuring of the workplace in August 2016. That restructuring resulted in a significant change in the worker's employment obligations and increase in her workload which accounted for her injury. The worker was suddenly responsible for 36, instead of 23 workers. This increase of 13 additional workers resulted in a substantial increase in coordinating, tracking and inputting information, including payroll information, which placed additional stress on her right thumb and wrist.

The worker's reported symptoms started in mid-October 2016, and increased in severity as she tried to continue performing and completing her work. It was submitted that the symptoms starting in mid-October was a reasonable time frame to support the development of a repetitive strain injury.

In response to questions, the worker stated that her job was twofold in nature, involving both scheduling and supervisory work. She said that more than two-thirds of her day was devoted to scheduling and the rest to her supervisory duties. The worker described in detail what was involved in and how she did her scheduling duties. She said she would be using the mouse and her computer for everything that had to do with scheduling and all the tasks that were involved with that. She described how she would hold and move the mouse, and indicated that she was conscious about keeping her wrist neutral. She would rotate between mousing and typing, and estimated that 90% of her time on the computer she would be clicking and 10% typing. She had two screens and would go back and forth between the screens.

The worker said that most days she would be multi-tasking and doing all things at the same time. She noted that every second Friday she had to do payroll, and described what was involved with that process. As the restructuring started in August, they would also have to cover for co-workers who were on vacation, or on sick leave. In addition, they would have to spend time mentoring new clerks who were being brought in as part of the restructuring process. The worker indicated that during the time they were transitioning, they were doing everything, all at the same time, and were under so much stress and time pressure. She was doing so much mousing and so many clickings, and with the increased workload and stress, she would be placing more pressure on her thumb when she was gripping the mouse.

In conclusion, the worker advisor submitted that there was an element of forceful gripping and twisting actions and awkward postures of the worker's wrist while she was using the mouse, together with a considerable increase in the amount of repetitive movements needed to input information, and that all of these factors were responsible for the onset of the worker's right thumb and wrist difficulties.

Employer's Position

The employer was represented by an advocate and by its WCB Coordinator. The employer's advocate provided a written submission in advance of the hearing and made an oral presentation to the panel.

The employer's position was they did not believe that the worker's de Quervain's tenosynovitis was associated with her job duties, including her computer use, mouse clicking, and increased responsibility for training new staff and/or scheduling in the summer of 2016, and her appeal should be dismissed.

In the employer's view, the evidence shows that the worker's job duties were varied. She spent two-thirds of her day involved in scheduling tasks, where she was always multi-tasking. The other one-third of her day was spent as a supervisor. She would be dealing with phone calls, filing, meetings and all sorts of things. In her computer work, she would rotate between mousing and typing. As she demonstrated at the hearing, her wrist was in a neutral position when she was mousing, and there was no forceful gripping or grasping of the mouse.

The employer's advocate noted that the worker's supervisor had advised that the worker's workload had not tripled, although it had changed and perhaps somewhat increased since August 2016. The advocate acknowledged that this was a stressful time, where they were training new staff, but added that even if there was an increase in responsibility, this did not account for the development of the worker's symptoms or change the fact that computer use does not cause de Quervain's tenosynovitis.

It was submitted that de Quervain's tenosynovitis is most often idiopathic, and that doctors simply do not know what causes it. In the employer's submission, the link between de Quervain's tenosynovitis and occupational activities of any kind is tenuous at best, and is largely based on anecdotal information which is not backed up by research.

While acknowledging that each case is based on its own merits and not on precedents, the employer’s advocate noted that the two Appeal Commission decisions which she had provided in advance of the hearing were very similar to the worker’s case. She noted that in one of those cases in particular, where the worker was similarly involved in scheduling, the panel found that it was unable to identify any forceful flexion, extension or abduction of the worker's wrist or thumb, which it understood to be the potential work-related causes of the worker's condition.

In conclusion, the employer's advocate submitted that while there may have been an element of repetitive activity involved in the worker's employment duties and an increase in her responsibilities in the summer of 2016, the evidence does not show that her right thumb or hand difficulties arose out of and in the course of her employment, and her appeal should be dismissed.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to the successful, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of her employment, or in other words, that her right thumb or hand difficulties or de Quervain's tenosynovitis were causally related to her job duties. The panel is not able to make that finding.

The panel is satisfied, on a balance of probabilities, that the evidence does not support the worker's position that her job duties, including in particular her use of the mouse, caused or contributed to her right thumb or hand difficulties or her diagnosis of de Quervain's tenosynovitis.

It is the panel's understanding that there are differing views in the current literature as to the cause or causes of de Quervain's tenosynovitis. Based on the evidence, the panel is unable to find that any of the risk factors which were referred to in this case as having been associated with de Quervain's tenosynovitis have been established. Even applying the criterion which was put forward by the worker advisor, being that of an overuse or repetitive strain injury, the panel is unable to find that this criterion has been met.

In this regard, the panel finds that based on the evidence on file and as presented at the hearing, that there was a significant amount of variety in the worker's duties in the course of a day. The worker estimated in her evidence that she spent two-thirds of her day on scheduling, with the other third of her day being spent on supervisory duties. The worker indicated that she would be frequently interrupted, with phone calls and other matters, and she would be multi-tasking throughout the day.

The worker further indicated that when she was on the computer, she spent 90% of her time mousing and 10% typing. She also indicated, however, that she would have to do a certain amount of reading and analysing of the information she received, in order to input it appropriately. As such, the panel finds that the use of the mouse was not continuous but rather, involved ongoing rest cycles in its use. With respect to the worker's use of the mouse itself, the panel finds that based on her description and demonstration at the hearing of how she would hold and use the mouse, the worker's movements when mousing were very subtle and slight, and her wrist generally remained in a neutral position throughout. Again, the panel does not find evidence of forceful flexion, extension or abduction of the wrist, which were some of the risk factors proposed to be associated with de Quervain's tenosynovitis.

The employer acknowledged and the panel accepts that there was a change or increase in the worker's duties in August 2016. The panel is unable to find, however, that the evidence supports that this increase in the worker's job duties caused or contributed to the worker's right thumb or hand difficulties or de Quervain's tenosynovitis.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain an injury by accident arising out of and in the course of her employment. The worker's claim is therefore not acceptable.

The worker’s appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of July, 2018