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 videoconference hearing was held on April 28, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The employer submitted an Employer's Accident Report to the WCB on October 23, 2019, indicating the worker injured her right arm in an incident at work on October 18, 2019. The employer noted that the worker reported the incident on October 21, 2019, and related her right arm injury to an increase in her duties over a three-day period.

The worker filed a Worker Injury Report on November 4, 2019, indicating she notified her manager on October 18, 2019 that she had extreme pain and discomfort in her right arm, up through her elbow to her shoulder and into her neck. The worker advised she sought medical attention on October 21, 2019.

A Doctor's First Report from the physician assistant who saw the worker on October 21, 2019 noted that the worker complained of pain in her right elbow and wrist after increased job duties the previous week and that her right hand was numb. The physician assistant noted the worker had pain at the lateral and medial epicondyles and good active range of motion. The worker was diagnosed with medial and lateral right epicondylitis, and a brace and medication were prescribed.

The worker attended an initial physiotherapy assessment on November 13, 2019, complaining of constant achy pain and difficulty gripping. The physiotherapist noted hypertonicity in the worker's wrist flexors and extensors and provided a diagnosis of lateral epicondylitis.

The WCB spoke with the worker on December 2, 2019 and discussed her claim. The worker confirmed that she experienced pain in her right arm from her hand/wrist/forearm/elbow leading up and into her right shoulder and neck area after an increase in her workload. The worker further noted the pain radiated into her fingers, mainly her pinky finger, and she was also experiencing headaches. The worker advised that approximately 80% of her job duties involved inputting information into the computer, and the remaining 20% involved writing and other clerical duties. It was noted that the worker also advised that her duties were repetitive, but that none of them involved a forceful, resisted grasping motion.

On December 10, 2019, the employer provided the WCB with the worker's job description and noted there had been no change to the worker's position or job duties and she had not worked any overtime or additional shifts. The employer also noted that the workload fluctuated.

On January 9, 2020, the WCB's Compensation Services advised the worker that her claim was not acceptable as they could not establish the necessary link between her current diagnosis and an accident occurring at work. Compensation Services noted that while the worker's job duties involved frequent repetitive use of her right hand, those movements would not have led to the development of the diagnosed lateral epicondylitis.

On February 7, 2020, the worker requested that Review Office reconsider Compensation Services' decision. On February 11, 2020, Review Office returned the worker's file to Compensation Services to obtain further information with respect to the worker's job duties and additional medical reports.

Further medical information was received, including a Chiropractor's First Report for an appointment on November 6, 2019, in which the chiropractor noted the worker's complaints of sharp pain in her right elbow and pain on wrist extension and flexion, and reported findings on examination of normal range of motion of the elbow and significant pain at the lateral and medial epicondyle with motion palpation. The WCB also received the report of a nerve conduction study performed January 31, 2020, which indicated bilateral mild carpal tunnel syndrome. Additional information was also obtained from the worker with respect to her job duties and activities. On June 11, 2020, Compensation Services advised that following further review, there would be no change to the earlier decision that the worker's claim was not acceptable.

On July 21, 2020, the worker requested that Review Office reconsider Compensation Services' decision, noting that her treating healthcare providers all supported that her diagnosis of lateral epicondylitis was related to her job duties. On September 10, 2020, the employer's representative provided a submission in support of Compensation Services' decision, and the worker responded to that submission on September 16, 2020.

On September 17, 2020, Review Office upheld Compensation Services' decision and determined that the worker's claim was not acceptable. Review Office noted that occupational factors commonly associated with the development of lateral epicondylitis include a combination of force/repetition, a combination of force/posture and forceful work or prolonged awkward postures, as documented in the comments of the WCB medical advisor on April 23, 2020. Review Office noted the worker's job duties involved repetitive keyboarding, but found that the evidence did not support that her duties involved the anatomical movements associated with the development of epicondylitis. Review Office further accepted the WCB medical advisor's opinion that there is no relationship between keyboarding and the occurrence of epicondylitis, and noted that the development of bilateral epicondylitis is more indicative of an underlying condition. As such, Review Office found the worker did not sustain an accident in the course of performing her job duties.

On November 2, 2020, the worker appealed the Review Office decision to the Appeal Commission and a videoconference 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 compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.

What constitutes an accident is defined in subsection 1(1) of the Act, which reads 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, further provides, in part, that:

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 self-represented on the appeal. The worker made a presentation at the hearing and responded to questions from the panel.

The worker's position was that she has epicondylitis in her dominant right arm as a result of the performance of her repetitive work duties, and her claim is acceptable.

The worker noted that she had worked for the employer for a number of years and had always done receptionist and computer work. In more recent years, she had moved into a new program which was being developed. The worker indicated that this position involved more than what was set out in the job description which the employer had provided and was more like that of a administrative assistant. The worker stated that the office set-up where she was working was not great. She said there were three people working in a very small, enclosed space; that "we are kind of in a closet with three of us."

The worker indicated that she was the only one doing this particular work and there was no relief or replacement available for vacation time. This meant that if she took two weeks' vacation, she would have to work harder when she came back to catch up on the work which had been accumulating while she was away. She said there was no allowance for overtime, which was therefore not documented but was dealt with as "flexible time."

The worker stated that by the time her claim was filed on October 18, 2019, the program had been getting busier and busier. When she filed her claim, she had dealt with 24 files or referrals in three days, to catch up on the work. She noted that this involved a lot of mouse clicking, going in and out of various websites, and a lot of repetitive work.

The worker stated that she and all of her healthcare providers, including her family physician, physician assistant, athletic therapist, chiropractor, sports medicine physician and orthopedic surgeon, all disagreed with the WCB's position that there had to be forceful repetitive work for her claim for epicondylitis to develop or be acceptable. She noted that she and her caregivers, agreed that epicondylitis was associated with repetitive work, which was what she had been doing in her position. They did not agree, however, that there had to be forceful or forceful work.

In conclusion, the worker noted that she had taken and paid for all her treatments, and had not missed a day of work due to her work ethic and concern for her clients. She said she was therefore not looking for time loss or wage loss benefits, but only to have her medical expenses covered, including treatments, medication and medical supplies.

Employer's Position

The employer was represented by an advocate and by its Regional Manager Workplace Safety and Health, both of whom participated in the hearing by telephone. The employer's advocate made a submission at the hearing, and the advocate and the Regional Manager responded to questions from the panel.

The employer's position was that the evidence does not support a cause and effect relationship between the worker's diagnosis of lateral epicondylitis and her employment duties, and her claim is not acceptable.

The employer's advocate noted that while the worker attributed her difficulties to doing computer work for 80% of the day, she performed other tasks the remaining 20% of the work day. While the worker indicated in particular that processing 24 referrals in three days had caused her a problem, the employer thought this sounded excessive, and provided month referral statistics for 2019 which showed a range of 41 to 63 referrals per month, and a monthly average of 53 referrals.

The employer's advocate submitted that there were no changes in the worker's job duties. The worker had been performing the same type of duties with the employer for almost 30 years, the last four of which were in this particular program. While she indicated that her job duties had tripled in the last three years, actual numbers which were provided by the employer did not corroborate that contention.

The employer's advocate submitted that evidence of an injury arising out of and in the course of employment was lacking. She noted that although the claim was for the right arm only, the evidence showed that the worker had been diagnosed with epicondylitis in both elbows. The advocate noted that bilateral epicondylitis is often associated with systemic or non-work-related causes, and submitted that the worker's diagnosis of bilateral epicondylitis pointed to her condition being non-occupational in origin.

The employer's advocate stated that the employer agreed with the WCB medical advisor's opinion that there was no scientific evidence to relate the condition of epicondylitis to keyboard activity. The advocate acknowledged the worker's submission that her physician stated the condition was caused by repetitive activity, but submitted that this is not what the scientific evidence indicates. Rather, the scientific evidence supports that possible occupational risk factors implicated in the development of lateral epicondylitis involved a combination of force and repetition associated with a prolonged forceful grip, a combination of force and prolonged awkward posture, forceful work, and prolonged awkward posture of holding the elbow or wrist in positions without the ability to stretch or change positions.

It was submitted that the wrist is generally in a neutral position when typing at the computer or using a mouse and there is not any forceful activity. The advocate noted that the adjudicator went through each of the above possible risk factors with the worker on May 28, 2020, and the worker confirmed that none of them were involved in her job duties. The advocate submitted that while the worker's work could be busy, it did not involve the type of vigorous overuse activity that is associated with or could be considered causative of lateral epicondylitis.

In conclusion, it was submitted that the evidence did not support a cause and effect relationship between the worker's lateral epicondylitis and her employment duties, and her appeal should be dismissed.

Analysis

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 suffered a personal injury by accident arising out of and in the course of her employment. More particularly, the panel must find that the worker's condition of right lateral epicondylitis was causally related to the performance of her employment duties. The panel is unable to make that finding, for the reasons that follow.

The panel accepts that the worker has been diagnosed with right lateral epicondylitis, but is unable to find that this diagnosis is causally related to her employment duties.

At the hearing, the worker described the tasks she performed, the frequency and sequencing of those tasks, her work area, posture and positioning. Based on our review of all of the evidence before us, on file and as presented at the hearing, the panel is not satisfied, on a balance of probabilities, that the worker's job duties or activities, as described, would have resulted in the development of the worker's condition of right lateral epicondylitis.

In arriving at that conclusion, the panel notes that the worker attributed her difficulties to the repetitive nature of her work, and mousing and keyboarding in particular, noting that mousing was the worst. The worker described how she would have several screens open on her computer, and would have to pull information and reports from numerous different sites or systems and scan or move them into different systems or charts. The worker said that the problem and pain came from repetitively clicking and moving these documents into the different systems, all of which was done with the mouse.

The worker indicated that she did take breaks, but was faced with pressure or deadlines from different individuals or facilities requesting information and the need to provide information in a timely manner. She said that some days were very full and she had to work constantly to get the work done. The worker further noted that she would take what she called "mini micro-breaks" every half hour, where she would get up and just give her hands a shake. The worker said she was lucky with the department she was in, that she could take breaks when or if she felt she needed to.

While the worker relied in particular on having done 24 referrals in three days, that panel notes that the evidence shows that the workload fluctuated and the worker had been doing this work for some time and would have been presented with similar situations in the past, where she was faced with heavier workloads. The employer questioned the worker's reference to dealing with 24 referrals in three days, noting that their statistic showed a maximum of 63 referrals in one month in 2019. With respect to this particular time, the worker said she could not recall having been on vacation just prior to filing her claim on October 18, 2019. She noted, however, that it was just after the Thanksgiving long weekend, so a lot of referrals would have come in.

The evidence shows that while the claim is for an injury to the right elbow only, the worker has been diagnosed with epicondylitis in both elbows or bilateral epicondylitis. The panel notes that bilateral epicondylitis presents an additional challenge in that it is often associated with systemic or non-work-related causes, but can be found to be caused by work if the evidence shows that both elbows were exposed to the types of occupational hazards that could lead to the development of lateral epicondylitis in each elbow.

With reference to her left epicondylitis, the worker noted at the hearing that the right elbow was worse than the left. The worker said she did not know when her left arm difficulties started, but said she thought that it was because she was trying to baby her right arm to take a lot of the workload off her right, "trying to do things with my left, like grabbing and pulling binders off…reaching up and grabbing a binder…looking through it, putting it back." The worker said she would be reaching up and grabbing a binder every time she had a new client. When asked whether she shifted to a left-hand mouse or tried to us her left hand for mousing, given she had said that mousing in particular was the problem, the worker said that "I did try clicking with a mouse on my left, I can't."

Given the presence of bilateral epicondylitis and the different types of activities performed by the worker and relied on by her as causing her epicondylitis in each elbow, the panel is unable to account for the worker's right lateral epicondylitis as being related to her job duties. The panel recognizes that the work which the worker was performing could be relatively fast-paced and stressful, and that her job duties involved a considerable amount of mousing and typing. The evidence also showed that she performed a variety of other tasks, and could take breaks as needed.

The panel has also considered the worker's reference to the location or set-up of her workspace, but is not satisfied that this would have caused or contributed to her right elbow epicondylitis. The evidence shows that the worker continued performing her duties with no modifications or restrictions, and that she did not seek accommodations or an ergonomic assessment.

The panel further notes that the worker stated at the hearing that her doctor wanted her to take time off, but she did not want to go off as there was nobody to replace her and she had to think of her clients first. She said that she continued going for treatment more often, and did everything else she could to try and get through the day.

The panel's general impression of the worker's job duties was that overall, her work was very busy work, but did not involve the type of prolonged or repetitive type of work that would be considered causative, or was causative, of her right lateral epicondylitis.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's condition of right lateral epicondylitis was not causally related to the performance of her employment duties. The panel therefore finds that the worker did not suffer a personal injury by accident arising out of and in the course of her employment and her claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 25th day of June, 2021