Decision #48/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on February 17, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
A Worker Incident Report was filed with the WCB on March 8, 2019 indicating the worker injured his back/hands/arms/fingers at work, with an incident date of January 1, 2019. The worker related his injury to:
I do typing and mouse work, the mouse is on my right hand side. I to (sic) typing and mouse work about half and half, not one more than the other. I do this for about eight hours per shift. I have been complaining about getting an ergonomic assessment. [Employer] is looking into getting me a new ergonomic set up.
The worker indicated he first noticed his symptoms 10 to 15 years ago with the pain first starting in the lower back around both hips, then two to three years ago, the pain was more in his right arm and hand. The worker noted that:
Now both my arms/hands/fingers fall asleep almost every night. I have stiffness in both sides of my neck that radiates into my upper back of the head. I have stiffness in the right shoulder blade and lower back. I get migraines and have trouble sleeping because of the pain.
On March 26, 2019, the WCB spoke with the worker regarding his claim. The worker advised he had been employed with the employer for 25 years on a full-time basis and noted the equipment used while performing his job duties was 25 years old, with a computer monitor that did not adjust and a chair that was uncomfortable. The worker further advised he had tried sitting at different desks, but the desks and equipment were the same. In addition, the worker noted an ergonomic assessment had been conducted in December 2018, and changes had been recommended, but no equipment had been provided. The worker advised the WCB that he had sought treatment from his family physician and had been referred to a neurologist for a nerve conduction study, and that he had also been treated by a physiotherapist.
On April 2, 2019, the employer provided the WCB with a copy of the Ergonomic Assessment conducted December 13, 2018. Recommendations were made in that Assessment to replace some of the worker's equipment to allow for better ergonomic positioning for the worker while performing his job duties. The employer noted that due to their internal approval processes, the recommended equipment had not yet been ordered.
On April 3, 2019, the employer noted their disagreement with the worker's claim of his ongoing arm pain being related to his workstation. The employer noted that:
[The worker's] tasks do not require high force repetitive activity involving motions of the wrist such as reaching, twisting, pulling, pushing as well as repetitive arm/wrist flexion/extension. Based on an 8 hour work day, in order for the task of keyboarding or mousing to be repetitive, [the worker] must be performing this task constantly for 67 – 100% of his 8 hour day, > 2/3 of the day or longer than 5.5 hours per day up to 8 hours per day. [The worker] certainly is not performing any bilateral tasks repetitively to meet that definition and there has been no recent changes to [the worker's] work day.
The employer further noted that the worker's job duties were varied and the worker was provided with rest breaks, and that it could not be established the worker's duties were "…both frequent and forceful to determine his work tasks are repetitive in nature." It was also noted that the worker's right and left hands "…do completely different tasks when not keyboarding…" and the employer believed a non work-related issue was causing the worker's bilateral arm/hand difficulties.
On April 12, 2019, medical information was provided to the WCB, which included May 2018 MRIs of the worker's spine and brain, a September 2018 MRI of his cervical spine and January 31, 2018 and April 19, 2018 reports from the worker's treating neurologist. The neurologist opined in his April 19, 2018 report that:
Nerve conduction studies performed involving his right upper extremity and right lower extremity were completely unremarkable. No motor/sensory abnormality was identified apart from he approached the diagnostic criteria (although did not meet) for right-sided carpal tunnel syndrome.
On May 8, 2019, the WCB received a narrative report from the worker's family physician. The treating physician opined the worker suffered from chronic mechanical neck and back pain and offered no comments on the cause of those difficulties. Copies of medical reports, diagnostic imaging and referral letters were provided.
On May 11, 2019, the worker's file was reviewed by a WCB medical advisor. The medical advisor noted that a review of the medical information did not confirm a diagnosis in relation to the worker's job duties, and that while there was speculation the worker's pain was related to the poor ergonomic set-up of his workstation, no diagnosis that might be caused by poor ergonomics or workplace accident had been provided. On May 15, 2019, the worker was advised by the WCB that his claim was not acceptable as a relationship between the development of his reported difficulties in his back/hands/arms/fingers and his job duties could not be established.
On July 3, 2019, the worker requested that Review Office reconsider the WCB's decision. The worker submitted a letter in support of his request from his family physician, and photographs of himself at his workstation. The worker noted the poor ergonomic set-up of his workstation contributed to his ongoing pain and difficulties. On July 30, 2019, the employer provided a submission in support of the WCB's decision, a copy of which was provided to the worker on July 31, 2019, and on September 10, 2019, the worker provided a further submission in response.
On September 12, 2019, Review Office determined the worker's claim was not acceptable. Review Office noted neither the worker's treating physiotherapist nor the treating family physician offered diagnoses related to the worker's job duties. Review Office further noted the WCB medical advisor opined that the diagnostic imaging indicated degenerative changes, and that they could not find a causal relationship between the worker's job duties and the development of the degenerative changes. As such, Review Office concluded the worker did not suffer an accident at work and the claim was not acceptable.
On October 22, 2019, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged and proceeded by way of videoconference on February 17, 2021.
Applicable Legislation and Policy
As the worker was employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of his employment or is disabled by reason of an industrial disease due to the nature of the employment is entitled to compensation.
"Accident" is defined in section 2 of the GECA to include "…a wilful 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) of the GECA, a federal government employee in Manitoba is entitled to receive compensation at the same rate and under the same conditions as are provided under The Workers Compensation Act of Manitoba (the "Act").
The Appeal Commission and its panels are bound by 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.
WCB Policy 44.05.10, Definition of "Accident" under the Government Employees Compensation Act, provides that the definition of accident in GECA will be given a broad interpretation as follows:
1. The phrases "personal injury by an accident" will be interpreted to mean "personal injury by accident".
2. The interpretation of "accident" will encompass both accidental cause and accidental result. That is, the injury itself may be considered the "accident".
3. The gradual onset of a personal injury including an injury resulting from a gradual process or repetitive injurious motion will be considered an "accident".
The worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.
The worker's position was that the evidence established that his having worked at an inadequate and ergonomically incorrect workstation for over 25 years was a strong contributing factor to, and cause of, his injuries and his claim should be accepted.
The worker stated that his biggest concern was basically working for 28 years, doing the same job with basically the same equipment which was purchased when the worksite was opened, with very lax ergonomic assessments and procedures being applied. The worker noted that the pictures he provided show how he had to lean forward day in and day out to perform his work, as the equipment was not at the right height and could not be adjusted. His monitor is at a height which is about 12 inches lower than it needs to be, and for someone with pre-existing back conditions as had been outlined, having to lean forward and backwards put added stress on the back. The ergonomic assessment found that his chair was not working properly, and it took over eight months before a new one was provided.
The worker submitted that his family doctor, his treating physiotherapist and the attending occupational therapist who did the Ergonomic Assessment in December 2008 have clearly outlined that his poor ergonomic workstation and environment caused and contributed to his injuries.
The worker submitted that he has missed work and incurred expenses to seek medical attention and remedy his muscular and skeletal injuries, and the pain continues to plague him. He noted that he continues to have back pain, neck pain, headaches and migraines, and has had to take pain medication constantly which has caused stomach issues. The worker submitted that all of these things have a domino effect, and one thing after another leads to poor health.
In conclusion, the worker submitted that there is nothing else that has been diagnosed which would explain his symptoms and pain. He submitted that basically, from a commonsense perspective, his symptoms and pain are attributable to the repeated strain of being subjected to a work environment which obviously was not, and was deemed not to be, ergonomically correct.
The employer was represented by a Human Resources Specialist. The employer's representative also made a presentation to the panel and responded to questions from the panel
The employer's position was that they did not dispute the worker is experiencing pain. They did not believe, however, that the worker has a valid claim under the Act.
The employer's representative submitted that the worker's role has remained the same since he started his employment with the employer. At the time of the claim, he identified lower back pain around both hips and pain in his right arm and right hand, as well as stiffness in both sides of his neck and in his right shoulder blade and lower back. He stated that he gets migraines and has trouble sleeping because of the pain. He also stated he noticed his symptoms 10 to 15 years ago.
The employer's representative noted that as the worker stated, the employer requested an ergonomic assessment, which was completed in December 2018. The employer acknowledged that implementing the equipment recommendations for the worker which arose out of that assessment took a long time, due to the requisite approval process, and noted that this was a frustration for everyone.
The employer's representative submitted that the medical evidence is clear that the symptoms which the worker experienced are not related to his employment. The representative submitted that while the worker argued that the family physician and physiotherapist agreed that there is a correlation with poor ergonomics and injuries, it is important to note that correlation and causation are very different things, and even where there is a correlation, that does not mean there is causation.
The representative submitted that the medical information on file, including specialist and radiological reports, should be given greater weight than speculative correlation statements made by the family physician and physiotherapist. It was submitted that the medical evidence is clear that the symptoms which the worker experienced are not related to employment, and are very consistent with the degeneration of the spine as noted by one of the specialists. It was submitted that there is no clinical evidence which supports the worker's claim that his symptoms are caused by work.
In conclusion, the employer's representative submitted that from their perspective, the worker's circumstances do not fall within the definition of accident as set out in the GECA and the WCB Policy, and the worker's appeal and claim should be denied.
The issue on this appeal is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.
The panel accepts that the worker had an ergonomically faulty workstation. The panel finds, however, that there is an absence of evidence that the workstation or work environment resulted in a specific increase in the worker's symptomatology or material change to his condition or conditions.
The panel is of the view that it is logical and makes sense that working at an ergonomically faulty workstation could and would have contributed to the worker experiencing pain, but is unable to find in the circumstances of this case that such pain falls within the definition of a injury or accident under the GECA or the WCB Policy. In other words, while it may have hurt the worker to do something, that does not mean what he was doing was causing an injury.
The panel finds that the delay of approximately eight months in implementing the ergonomic assessment and providing the worker with the recommended equipment was certainly unfortunate, but is unable to find that such a delay caused or materially changed the worker's condition or conditions.
There are numerous references on file to the worker's work chair and the ergonomic assessment having identified that the chair was broken and needed to be replaced and the effect this would have on the worker. The panel notes that there is no indication as to when or how long the chair had been broken. Further, in response to questions from the panel, the worker indicated that he would not use the chair that much during the workday, estimating that he spent 90% of his time standing and 10% sitting, to give his legs a break.
While there are also references on the file to concerns with respect to the worker beginning to develop carpal tunnel syndrome, the evidence shows and the worker acknowledged that he has not been diagnosed with this condition. The panel is also unable to find that the worker's duties, as described, involved the type of forceful and highly repetitive movements or duties which would be expected for a diagnosis of carpal tunnel syndrome.
The worker did not dispute that he has degenerative issues with his back and neck. The worker stated, however, that "…my work environment…the leaning forward, the stress that that has caused in my neck…in my back…is definitely a contributing factor." Again, the panel is unable to find that the medical evidence supports the worker's assertion in this regard. The panel notes in this regard that the MRIs of the worker spine, on file, indicate only mild degenerative changes in the worker's spine from 2008 to 2018, which the panel understands would not be consistent with a workplace injury.
The panel has also considered the worker's reference to his problems with headaches and migraines, but is again unable to find that the evidence support that the worker's migraines are causally related to his work duties, the performance of his duties or his work environment.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of his employment. The panel therefore finds that the worker's claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of April, 2021