The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on June 8, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on August 20, 2020 reporting injury to both forearms at work on August 15, 2020, which they reported to the employer on August 17, 2020. The worker described “I was just at work and typing and had shooting pains in both right and left elbow and numbness and tingling in both forearms and hands.” The Employer’s Accident Report provided to the WCB on August 24, 2020 noted the worker reported “Was typing and felt a shooting pain in my right elbow”.

In a discussion with the WCB regarding their claim on August 26, 2020, the worker confirmed they had constant pain, with their right side worse than the left, in both forearms, with their elbows sore to the touch. The worker advised the WCB the symptoms started approximately one and a half months previously and noted while they were on holidays, the symptoms continued but were less severe. The worker noted the symptoms increased since first noted, with mouse-use worsening right arm symptoms, and felt that constant use of the mouse, typing and their workspace setup not being ergonomic all contributed to their injury.

On September 9, 2020, the WCB received a Chiropractor’s First Report from the worker’s attendance on July 15, 2020. The chiropractor noted the worker’s report of severe right elbow pain with any movement, with typing or bending of the elbow causing pain that kept them up at night, and an inability to hold a cup. The worker reported to the chiropractor that their left elbow pain was not as bad and that they felt better with rest. Upon examination, the chiropractor noted visible edema and tenderness on the worker’s right forearm and tenderness in the worker’s left elbow, with full active range of motion with pain. The chiropractor diagnosed right elbow lateral epicondylitis and left elbow medial epicondylitis.

On August 26, 2020, the worker was assessed by a sports medicine physician who noted the worker reported “Pain over lateral epicondyles, waking up in middle of night with numbness in fingers, shaking hands to relief (sic) numbness”. The sports medicine physician recorded findings of “Pain to resisted extension over lateral epicondyle bilaterally, pain to palpitation approx. 1 cm distal to lat (lateral) epicondyle, mild atrophy thenar eminence right hand…” along with positive Tinel’s and Phalen’s tests and diagnosed bilateral lateral epicondylitis and carpal tunnel syndrome.

On August 31, 2020, the worker attended for an initial physiotherapy assessment and reported to the physiotherapist they moved “…work equipment from home to work multiple times due to Covid restrictions”, describing their injury. Further, the worker reported numbness into both of their hands and pain with lifting or mousing/typing at work. The physiotherapist noted positive testing and diagnosed bilateral epicondylitis and bilateral medial nerve neuropathy at wrist. The physiotherapist also recommended an ergonomic office set up with an ergonomic keyboard, desk and vertical mouse.

A WCB medical advisor reviewed the worker’s file on September 4, 2020 and noted that occupational risk factors for development of lateral epicondylitis and carpal tunnel syndrome include “…frequent firmly resisted gripping and grasping such as would occur with heavy duty mechanic work.” On September 17, 2020, the WCB advised the worker their claim was not accepted as it determined the nature of the worker’s job duties did not require the highly repetitive, forceful flexion/extension, gripping, pulling or twisting or awkward hand or arm positions necessary for the development of lateral epicondylitis or carpal tunnel syndrome and as such, a relationship between their bilateral arm/wrist difficulties and their employment could not be established.

On October 5, 2020, the worker’s treating sports medicine physician provided a further report noting the worker received a pain injection into their lateral epicondyle, and recommended frequent breaks from typing, an ergonomic chair, desk, keyboard and mouse. On October 7, 2020, the WCB advised the worker this new medical information was reviewed but there would be no change to the earlier decision to deny their claim.

The worker requested reconsideration of the WCB’s decision to Review Office on October 7, 2020. The worker submitted photographs of their workstation set-up and noted they were required, on a two week rotation, to transport their computer equipment to their home and back again as a result of being required to work from home. The worker stated the weight of the equipment was 32.82 pounds and they were required to transport the equipment ten times, beginning in March 2020. The worker outlined that by June 2020, they began to feel pain in both of their forearms and completed a Notice of Injury to Employer on July 15, 2020. The worker also provided copies of medical articles in support of their claim.

On October 21, 2020, the worker provided Review Office with a copy of the nerve conduction study conducted on September 22, 2020, which indicated a normal study, with the neurologist recommending the worker continue with physiotherapy for their bilateral tennis elbow and adjustment of their workspace. Review Office received a letter from the worker’s treating family physician in support of the worker’s claim on November 17, 2020. An employer’s submission in support of the WCB’s position was received on November 23, 2020, a copy of which was provided to the worker. The worker provided further medical information, including an ergonomic assessment of their workstation dated November 23, 2020. Copies were provided to the employer, and final submissions from the employer were received on December 7, 2020, and from the worker on December 14, 2020.

On December 17, 2020, Review Office determined the worker’s claim was not acceptable. Review Office accepted the opinion of the WCB medical advisor that the worker’s job duties did not include the common risk factors for the development of bilateral lateral epicondylitis. Further, Review Office found a sudden onset of pain, as reported by the worker, is indicative of a traumatic injury and not generally a result of poor ergonomics. It also noted the recommended ergonomic changes to the worker’s workstation were intended to alleviate the worker’s elbow and wrist difficulties, which were found to be non-compensable.

The worker’s representative filed an appeal with the Appeal Commission on January 25, 2021. A videoconference hearing was arranged and held on June 8, 2021.

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.

The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment and “...any thing that is done and the doing of which arises out of, and in the course of, employment,” which results in an injury.

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury, as set out in s 39 of the Act, or medical aid to cure and provide relief from injury arising out of a compensable accident, as provided under s 27 of the Act.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy provides, in part, that:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

...When a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

...However, when it is determined that the worker's inability to work is a result of a compensable injury and evidence suggests, on a balance of probabilities, that the compensable injury, or the compensable injury in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

The following definitions are set out in the Policy: 

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury. 

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury. 

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker’s Position

The worker was represented in the hearing by their union’s WCB specialist who provided a written submission to the panel in advance of the hearing and made an oral submission in support of the worker’s appeal. The worker provided testimony through answers to questions posed by their advocate and by members of the appeal panel.

The worker’s position is that the claim is acceptable because the evidence supports a finding that their diagnosis of bilateral lateral epicondylitis arose out of and was the result of a combination of work-related activities. The worker’s advocate stated that the repeated strain to the worker’s arms arising out of the performance of their regular work activities over time was further compounded by the strain of repeatedly lifting and awkwardly carrying the 33-pound tote containing work equipment to and from the worker’s home office, and further, by the acute-pain incident of July 15, 2020.

The advocate noted that the worker’s treating family physician disputes the opinion of the WCB’s medical advisor that lateral epicondylitis arises primarily out of occupational causes involving frequent firmly resisted gripping and grasping such as would occur with heavy duty mechanic work, setting out in a letter that “…the vast majority of cases of lateral epicondylitis that I see are not due to heavy force activity, but repetitive motion, and/or heavy lifting. The heavy lifting combined with inadequate ergonomics for [their] repetitive computer work could certainly cause the symptoms [they have], as lateral epicondylitis is due to repetitive forearm extensor strain.”

The worker’s advocate also noted that the ergonomic assessment of the worker’s office environment revealed deficiencies in both the worker’s office workstation, as well as the means by which the worker would transport their work equipment to and from the office. The ergonomic assessor found that the set-up of the worker’s workstation could “increase strain to the arms, neck and low back areas,” that their chair would cause their elbows to wing out due to the lack of armrest support, that the keyboard tray would cause the worker to shrug their shoulders and bend their wrists to type, and that the small mouse pad “can increase strain in the wrist area.” The assessor also described that:

“Due to working from home strategies, equipment is carried in a tote bag. The CP unit, monitor and other items, weighing ~ 32lbs is lifted, carried in and out of the office weekly. The main issue is the length of the tote bag handles. They are too long. Carrying the bag in one hand with a good posture results in the bag touching the ground, the arm is shrugged, elbow slightly flexed and there is co-contraction of the forearm flexor and extensor muscle groups. The static force grip force also adds to the forearm and elbow strain.”

The advocate submitted that although the ergonomic assessment addressed only the worker’s office workstation and the tote used to transport the equipment to and from home, there were similar ergonomic deficiencies in the worker’s home office setup, where they were working remotely when symptoms first appeared. The worker described their home office furnishings to the panel as consisting of a console table, two end tables and a dining chair, and referenced the photos in the claim file of this setup.

The worker’s advocate referenced the April 25, 2021 report from the treating sport medicine physician who explained that:

“Lateral epicondylitis is secondary to microtrauma of the extensor tendons. In the traditional sense this is due to repetitive and continuous work involving the wrists and elbows. [The worker] had the added stress of occasionally having to carry [their] workstation to and from home. I would also like to point out that the weight of the computer equipment in combination with [the worker’s] smaller muscular build likely increased the risk for micro-trauma due to repetitive forceful gripping beyond capacity. This condition can also have a delayed presentation based on the amount and type of exposure. [The worker’s] ergonomic assessment found multiple deficiencies in [their] workstation which concluded put [them] at risk of elbow, forearm and wrist strain. In addition the tote which used to carry the equipment was not ergonomically adequate. Combining this with [their] repetitive work using a keyboard and mouse, it is my medical opinion that based on the balance of probabilities, [the worker’s] diagnosis of lateral epicondylitis is causally related to her work.”

The sport medicine physician also provided research that the worker’s advocate described as supporting a causal association between biomechanical exposure involving the wrist and elbow at work and lateral epicondylitis.

With respect to the opinion of the WCB medical advisor of September 4, 2020, the worker’s advocate noted that this opinion is very general in nature and does not specifically address the worker’s individual job duties and ergonomics. Further, the worker’s advocate noted that the opinion does not align with the evidence from the treating sport medicine physician and urged the panel to prefer the opinion by the treating physician over that of the WCB medical advisor.

The worker’s advocate stated that the worker’s work duties including repetitive keyboard and mouse duties, undertaken in an ergonomically deficient workstation, as well as repeatedly lifting and carrying a heavy and awkward tote, were – collectively – the accident that caused the worker to be injured. The advocate relied upon the broad definition of an “accident” under Act, including any “thing that is done and the doing of which arises out of, and in the course of, employment,” which results in an injury.

The worker described their job duties to the panel in answer to questions posed by their advocate and by panel members. The worker confirmed that there was not any change in the nature of their work in spring 2020, other than as related to the location of that work, which was taking place either at home or in the office due to pandemic related restrictions. The worker described the steps required to exit their office with the office equipment through multiple card-access only doors leading to the elevator and parking and then the steps to unload the equipment at home. They noted that they would set down and pick up the equipment multiple times along each part of the journey. The worker described working in their current administrative position since 2018, with work that primarily involves computer keyboarding and mousing.

The worker indicated that prior to the end of May 2020, they had no difficulties with their elbows or arms, but that at the end of May and in early June, 2020, they began to feel uncomfortable tightness and tingling in both arms, which would extend into their hands. Sometimes the worker would wake at night with these symptoms. At first, the symptoms appeared randomly and intermittently and would be relieved by “shaking out” the worker’s arms, as well as applying ice and resting. These symptoms changed on July 15, 2020 when the worker experienced shooting pain up both arms as they were removing their office equipment out of the back of their vehicle upon arriving at work. The worker described extreme pain in both forearms and elbows painful to touch as they did their work that day. The worker attended to their chiropractor for assessment the same day.

The worker explained to the panel that they called the WCB the same day on recommendation of their treating chiropractor and left a voicemail message. When they were contacted by the WCB the worker was advised to complete a notice of injury form. The worker did so but did not submit it as it required a signature from their supervisor and the worker did not see their supervisor in the office, due to vacation scheduling, until August 17, 2020 at which time the claim was initiated. The worker noted that despite 10 days of vacation in the intervening period, their symptoms did not improve. The worker stated that their symptoms were no different whether working at home or in the office after July 15, 2020 and progressively worsened after that date. After an ergonomic assessment in November 2020, the worker’s office workstation was modified, in that the worker was provided with a different chair, keyboard and foot stool. On questioning by panel members, the worker’s advocate provided that in the alternative, if the panel does not find the evidence to support that the worker’s bilateral epicondylitis was caused by the worker’s job duties, the evidence does support that the worker’s job duties, including repetitive keyboarding and mousing in an ergonomically deficient office setup, coupled with the strain associated with moving the worker’s office equipment back and forth using an inadequate tote, would have aggravated or enhanced a non-compensable pre-existing condition of bilateral epicondylitis, and as such, would still be compensable.

In sum, the worker’s position is that the claim is acceptable because the evidence supports a finding on a balance of probabilities, that multiple occupational factors contributed to the worker’s forearm and elbow injury, in an environment where the worker’s arms were already at-risk for injury given the ergonomic deficiencies of their office workstation. The strong gripping, repeated lifting and carrying of the 33-pound tote, involved new and additional forces that, on a balance of probabilities, triggered the worker’s injury in July 2020, and the ergonomic inadequacies of the worker’s home office likely exacerbated their symptoms. The worker’s claim should be accepted because as a result of doing their work, the “thing that is done and the doing of which arises out of, and in the course of, employment,” they were injured.

Employer’s Position

The employer was represented in the hearing by its WCB coordinator who made an oral submission on behalf of the employer and provided answers to questions posed by panel members.

The employer’s position is that the evidence does not support a finding that as a result of engaging in their work duties, including typing and mousing, as well as transporting their computer equipment to and from their office during spring 2020, the worker sustained injury to their arms, specifically the diagnosed bilateral epicondylitis.

The employer’s representative pointed to the worker’s inconsistent reporting of the mechanism of injury in various reports, noting that initially the worker attributed their symptoms to constant mousing and typing, but that they also stated that the injury was caused by frequent moving of their office equipment to and from their home.

The employer’s representative relied upon the September 4, 2020 opinion of the WCB medical advisor that:

“Occupational risk factors for the development of carpal tunnel syndrome include frequent firmly resisted gripping and grasping such as would occur with heavy duty mechanic work. The same factors would apply for the development of lateral epicondylitis (both force and repetition factors required).”

The employer’s representative stated that there is no evidence that the worker’s job duties include any duties known to be occupational risk factors for the development of lateral epicondylitis as outlined by the WCB medical advisor. Given the lack of evidence that the diagnosis developed as a result of and is causally related to the performance of the worker’s job duties, the worker’s claim is not acceptable, and the decision of the Review Office should be upheld.

In sum, the employer’s position is that the evidence does not support a finding that there is any occupational cause for the worker’s injury and therefore the panel should uphold the decision of the Review Office that the claim is not acceptable and deny the worker’s appeal.

Analysis

The issue for determination is whether or not the claim is acceptable. In order to find in favour of the worker, the panel must determine that the worker was injured as a result of an accident arising out of and in the course of their employment. The panel was able to make that finding, as outlined in the reasons that follow.

The definition of accident under the Act requires there to be evidence of a chance event, including an event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment. The definition also requires that the worker be injured as a result of any such an event. Where an accident resulting in injury has occurred arising out of and in the course of employment, the claim is acceptable.

In this case, there is clear medical evidence that the worker has a confirmed diagnosis of bilateral epicondylitis. This is not in question; rather, the question is whether the development of this condition is causally related to the worker’s participation in their employment activities.

The worker’s position is that due to a combination of factors arising out of the worker’s completion of their regular job duties, the worker sustained injury to both arms, namely the development of bilateral epicondylitis. More specifically, the worker’s position is based upon the evidence of improper office ergonomics as revealed by the November 23, 2020 ergonomic assessment report, improper work at home ergonomics as evidenced by the worker’s testimony and photographs provided to the WCB, as well as the repetitive keyboarding and mousing duties required of the worker in the ordinary course of their duties, and the further physical strain on the worker’s arms that arose from the need to transport their office computer equipment back and forth from home to office beginning in late March 2020. The further event on July 15, 2020 when the worker experienced shooting pain in both arms while removing the computer equipment from their vehicle upon arrival at work is also relied upon as a contributing occupational cause in support of the worker’s claim.

Although the worker testified that their bilateral arm symptoms of tingling and numbness developed beginning in late May 2020, some two months following the transition to combined work at home and office due to the pandemic, there is a lack of medical evidence to support this as the worker did not seek any medical attention until July 15, 2020. As noted by the treating sport medicine physician, onset of symptoms does not necessarily provide indication as to when the worker developed this condition. The physician stated in their April 25, 2021 report that “This condition can also have a delayed presentation based on the amount and type of exposure.”

The panel considered the worker’s testimony as to the strain caused by carrying their office computer equipment to and from their office over a series of months in a tote bag identified by the November 23, 2020 ergonomic assessment as inadequate for the task. The worker’s testimony was that this bag was carried for short periods of time and then set down to open security doors, to access the elevator and to open their vehicle for loading. Although this task was repeated a number of times over the course of months, the panel notes that this was not a daily requirement and further, the task allowed for periods of rest and transfer between arms or carrying with both arms from time to time, reducing the potential impact or load on the worker’s arms.

The panel considered whether the worker’s daily work duties of using a computer with keyboard and mouse to draft documents and emails, make database inquiries and complete forms as described are likely to cause or result in the development of bilateral epicondylitis. The worker testified that there was no change in their office duties during this period. The panel notes that such tasks do not typically involve frequent firmly resisted gripping and grasping, as would be expected for an occupationally related diagnosis of epicondylitis and finds that there is no evidence to support that these duties did cause the worker’s bilateral arm condition. However, the panel does note that the worker was required to undertake these tasks, firstly, in an office environment with improper ergonomic setup and then, in a home office environment where ergonomics do not appear to have been considered at all.

The panel considered the contents of the November 23, 2020 ergonomic assessment as well as the worker’s evidence in this regard, noting that although these issues were not formally identified until November 2020, the office ergonomic issues pre-date the worker’s claim and the worker had worked in that environment without any development of symptoms for several years. The panel also noted that the worker’s home office setup after March 2020, although not formally assessed for ergonomics, also appears deficient in many respects. The worker began to work in that home setting at least intermittently in late March 2020 and continued to do so through the summer of 2020. Although there is evidence that such ergonomic deficiencies as have been identified could contribute to arm strain, the panel does not find the evidence supports a conclusion that the ergonomic issues did cause the worker’s bilateral arm strain.

The worker’s position is also based upon a significant increase and change in symptoms that occurred on July 15, 2020 when the worker experienced sudden and acute pain on lifting the equipment out of their vehicle to return to work in the office. It was as a result of this incident that the worker sought medical attention, and the worker’s testimony is that their arm symptoms were noticeably changed thereafter, with more pain than before, and did not dissipate even during 10 days of vacation and rest in early August, 2020. By the time the worker sought medical attention, the worker had transported their office computer back and forth several times and had worked at home for a number of weeks, though not consistently.

The panel considered the medical opinions offered by the WCB medical advisor and by the worker’s treating sport medicine physician. Both confirm and the panel accepts that epicondylitis typically develops as a result of repetitive and forceful gripping activity. The sport medicine physician suggested that there may be multiple contributing factors, and we accept that possibility, but the evidence here does not support the conclusion that the various occupational causes pointed to by the worker’s representative, resulted in the development of the worker’s bilateral epicondylitis. Whether considered individually or in concert, the evidence does not support a finding that the worker’s job duties involved sufficient forceful and repetitious gripping activity as would be required to develop bilateral epicondylitis from those duties. The evidence before the panel as to the nature of the worker’s job duties and office ergonomics does not support a determination that the worker’s bilateral elbow and forearm difficulties were the result of an occupational related cause or causes.

Having made this finding, the panel also considered whether, if the worker’s bilateral epicondylitis developed insidiously or due to other non-compensable factors, it was exacerbated by a combination of the worker’s duties, their inadequate ergonomic office environment and the lifting incident of July 15, 2020. In other words, could the worker’s non-compensable condition have been aggravated or enhanced by these factors?

In considering this question, the panel noted that the ergonomic assessment report November 23, 2020 sets out, with respect to the biomechanics of carrying the office computer equipment improperly, that “Carrying the bag in one hand with a good posture results in the bag touching the ground, the arm is shrugged, elbow slightly flexed and there is co-contraction of the forearm flexor and extensor muscle groups. The static force grip force also adds to the forearm and elbow strain.” The panel also noted that the worker’s treating sport medicine physician, in their April 25, 2021 report addressed the question of cumulative effect of carrying that equipment while also working in an ergonomically deficient office setup at repetitive typing and mousing work and concluded that doing so “...likely increased the risk for micro-trauma due to repetitive forceful gripping beyond capacity.”

The panel also considered that after the July 15, 2020 lifting incident resulting in a report of acute pain in both of the worker’s arms, resulting in the worker seeking medical attention, the worker continued working in an office environment where the equipment setup was later found to be ergonomically deficient, as well as in their home office environment as described above, undertaking their longstanding work duties involving substantial computer keyboarding and mousing.

The panel accepts the worker’s position that the cumulative effect of the continuation of the worker’s job duties in these circumstances could have resulted in a worsening of, and increase to the worker’s bilateral arm symptoms, which were later diagnosed as bilateral epicondylitis. We find that the combined effect of continuing to work in an improper ergonomic home and office setup, of transporting heavy computer equipment in an inadequate tote, of the acute incident of July 15, 2020 and the worker’s ongoing job duties exacerbated or caused a flareup of the worker’s non-compensable, bilateral epicondylitis.

On a balance of probabilities, the panel finds that the evidence supports that the worker’s non-compensable condition of bilateral epicondylitis was aggravated or enhanced by the worker’s occupational conditions, including the worker’s day to day duties, the ergonomics of their at-home office and by the acute event of July 15, 2020. We find that this exacerbation of a non-compensable condition to be an injury that occurred a result of an accident arising out of and in the course of the worker’s employment, and therefore the claim should be accepted. There is insufficient medical information before the panel to allow us to determine whether the exacerbation is an aggravation or enhancement under the Policy. This matter is referred to the WCB for further adjudication.

The worker’s appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of June, 2021