Decision #151/21 - Type: Workers Compensation


The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on November 24, 2021 to consider the worker's appeal.


Whether or not the claim is acceptable.


The claim is acceptable.


In a Worker Incident Report to the WCB on September 8, 2020, the worker reported they injured their neck and right shoulder on August 24, 2020, and reported the injury to the employer on August 25, 2020. The worker described that while at home, they lifted their head and felt sharp pain down their neck and their right arm went numb. The worker also noted experiencing severe pain in the middle of the night and not being able to feel the right side of their jaw and their right arm and that they were taken to the local emergency room for treatment.

The report from the emergency department noted the worker presented with neck pain that radiated to their right arm and bilateral hand paresthesia. The emergency room physician recorded that, on questioning, the worker advised they were "…always turned to the right" at their workstation. On examination, the physician noted decreased range of motion in all planes and "[d]ecreased sharp sensation primarily in ulnar distribution." The physician diagnosed neck pain spasm causing distal neuropathy, referred the worker for nerve conduction studies and recommended reconfiguration of the worker's workstation with a standing desk and their computer in a better sight line. In the Doctor First Report to the WCB, the emergency room physician set out the diagnosis of severe muscle spasm and recommended physiotherapy and massage therapy as well as reconfiguring of the worker's workstation "…to minimize neck strain."

On September 1, 2020, the worker attended an initial physiotherapy assessment and reported neck spasms, right-sided numbness down their arm into their hand and tightness through their shoulder blades and spine. The physiotherapist diagnosed a cervical strain on the right side and recommended workplace restrictions of limited use of prolonged positions (less than 30 minutes).

In a nerve conduction study on September 17, 2020, the physiatrist noted a normal examination but opined the worker's symptoms caused suspicion of “…C6-C7 nerve root irritation on the right side without residual electrophysiologic abnormalities." The worker was counselled about proper ergonomics at work and advised to avoid carrying heavy bags on their shoulders, avoid heavy lifting in the upright position and avoid sleeping on their stomach.

The WCB contacted the worker on September 24, 2020 to discuss the claim. The worker advised they were working an alternating schedule with two days on and two days off, never more than two days consecutively. The worker confirmed their job duties were mostly clerical and had stayed mostly the same for approximately 15 years. The worker advised that after they finished work on August 24, 2020, they went home and at home, when lifting their head to speak to their spouse, felt an immediate spasm in their neck, down their shoulder blade. They later woke in the middle of the night and couldn't feel the right side of their arm and sought medical treatment as a result. The WCB verbally advised the worker the claim was not acceptable as it could not be established the worker sustained an accident at work and then confirmed the decision by a letter of the same date.

The worker requested reconsideration of the WCB's decision to Review Office on November 5, 2020. In their submission, the worker noted their belief the workplace injury occurred due to their work environment, as an MRI taken on July 7, 2020 indicated they had difficulties prior to August 24, 2020. The worker noted a further trip to the emergency department on October 27, 2020 due to an increase of symptoms in their upper neck, including difficulties swallowing and extreme pain and that they were taken off work until November 10, 2020.

On November 13, 2020, the worker provided a copy of an Ergonomic Assessment, completed by the employer on October 20, 2020, with recommended changes to their workstation. The worker contacted Review Office on November 18, 2020 to advise additional recommendations were made because of the ergonomic assessment.

Review Office determined on November 23, 2020 that the worker's claim was not acceptable. Review Office acknowledged the worker's workstation was not ergonomically correct, but noted recommendations were made to improve the workstation based on the assessment. Review Office acknowledged the worker had difficulties but did not find the evidence supported a finding that the worker's workstation was the cause of those difficulties. As such, Review Office determined an accident arising out of or in the course of the worker's duties was not established and the worker's claim was not acceptable.

The worker's representative filed an appeal with the Appeal Commission on April 16, 2021 and a hearing was arranged for November 24, 2021.


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 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...

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.

The WCB has established Policy 44.05, Arising Out of and in the Course of Employment (the “Policy”) which sets out 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 appeared in the hearing, represented by a worker advisor. The worker advisor provided the panel with an oral submission in the hearing and a written submission in advance of the hearing. The worker offered testimony in response to questions posed by the worker advisor and in response to questions from the appeal panel.

The worker’s position, as outlined by the worker advisor, is that the worker sustained injury as a result of the cumulative effect of working with sub-optimal body positioning due to improper workstation configuration over a period of time, which culminated in the incident at home on August 24, 2020 that caused the worker to seek emergency medical treatment.

The worker advisor noted that the worker’s initial injury report references the emergency room physician’s statement to the worker that they had a repetitive injury from work and that the employer’s accident report also sets out that the worker reported a repetitive strain injury. Chart notes from a June 2, 2020 appointment with the treating family physician indicate that the worker was having trouble at work with grasping equipment and increased symptoms by shift-end. Chiropractic chart notes from July 9, 2020 also indicate the worker’s complaint of neck pain worsening at work when leaning forward to give instructions.

The worker advisor also referenced medical records from after the date of the claim as recording that the worker’s job duties were causing and/or contributing to their neck difficulties, whether due to looking up at a screen or turning to the right.

The worker advisor noted that the ergonomic assessment report of October 20, 2020 outlines several employment hazards capable of causing injury to the worker, including, in particular, the worker’s chair, microphone placement and positioning of the second computer monitor.

The worker testified to making an earlier request, in late fall to early winter 2019, to the employer for a more appropriate chair and that as a result, a desk-height stool was offered and provided. This stool created other postural challenges as the worker then had to lean forward and down to reach and use their equipment. Early in 2020, the worker “borrowed” another chair from a different department which they continued to use until a new chair was provided after the October 2020 ergonomic assessment.

The worker testified to the configuration of their workstation, indicating that they needed to elevate and extend their right arm to use the mouse and keyboard, and that they have to lean forward and to the left to speak into the microphone, while looking at the screen to their right. The worker described that each task varies in length, from 20 minutes up to 150 minutes so that sometimes they remain in this awkward positioning for significant periods of time. The worker also described having to lean forward to reach and feed the scanner which was moved during the ergonomic assessment to a more accessible location.

The worker described their symptoms as shooting pain in the neck and shoulder area, with numbness into their fingers. Sometimes the numbness made it difficult to grasp or hold items. The worker indicated they treated their symptoms at home at first, with ice and over the counter medications. When the worker first sought medical treatment in May 2020, the family physician was of the view that the numbness was related to other possible causes which they subsequently ruled out through testing. The worker indicated that there was no exploration of a workplace injury until this was noted on their visit to the emergency room on August 25, 2020 at which time the emergency room physician asked the worker about their workplace setup.

The worker indicated that there had not been any changes in their work duties in the previous year but did describe pandemic-related task-scheduling changes introduced in April/May 2020 which resulted in a reduction of short and easy tasks at work and a corresponding increase of longer and more complex tasks that required the worker to maintain uncomfortable positions for greater lengths of time during each shift.

In sum, the worker’s position is that their work duties and workstation configuration caused or contributed to their neck difficulties beginning with symptom onset in May 2020 and ongoing as the worker continued to work while injured. For this reason, the worker’s position is that the claim should be acceptable.

Employer’s Position

The employer was represented in the hearing by its senior safety specialist, who provided an oral submission in the hearing and answered questions posed by panel members.

The employer’s position is that there is no evidence of any event or injury sustained by the worker arising out of their work duties and therefore the WCB decision that the worker did not sustain an injury arising out of an accident should be maintained and the claim should not be accepted.

The employer’s representative disputed the worker’s description of their body positioning while using equipment in the course of their work, noting that the desk is positioned at 30 inches above the floor, with the chair height of 18-20 inches, such that the worker’s arm would be at elbow height rather than raised higher as the worker described. Further, the representative noted that the chair was wheeled and could be moved to the left and right so as to minimize the need to stretch and bend to the side.

The employer’s representative noted that the worker’s job duties are administrative and sedentary and would be described as light duties. The employer’s representative noted that the first notice of the worker’s health and safety concerns was received in September 2020 when the worker completed an injury report. This resulted in the ergonomic assessment of October 20, 2020 and the subsequent implementation of the recommendations from that assessment. The employer’s representative outlined to the panel the workstation changes made as a result of the ergonomic assessment including that the microphone is now on an extendable arm and the keyboard is on a retractable arm, the monitors were moved forward, and a new fully adjustable chair was provided.

The employer’s representative pointed to the medical evidence of the worker’s degenerative back issues as providing an alternative explanation for the development of the worker’s symptoms.

In sum, the employer’s position is that the evidence does not support a determination that the worker was injured as a result of an accident arising out of and in the course of their employment and for this reason, the worker’s claim should not be accepted.


The question for determination on this appeal is whether the worker’s claim is acceptable. For the panel to grant the worker’s appeal, we would have to find that the worker was injured as a result of an accident arising out of and in the course of the worker’s employment. As outlined in the reasons that follow, that panel was able to make such a finding and the worker’s appeal is therefore granted.

The panel first considered whether the evidence supports a finding that the worker was injured. The panel reviewed the medical reporting beginning with the chart notes from the treating family physician which indicate a May 21, 2020 telephone appointment with the family physician in which the worker reported pain to their wrist radiating up to their shoulder over the previous three weeks that they treated with anti-inflammatory medication. On June 2, 2020, the family physician assessed the worker and noted their report of end-of-day neck stiffness and pain as well as tingling and pain through the arms with some difficulty in grasping items at work. At the June 30, 2020 appointment, the family physician began to query whether there was nerve compression causing the worker’s continuing arm/hand symptoms and ordered an MRI and EMG. On July 10, 2020 the family physician recommended massage therapy and trying chiropractic as “tight muscles can cause some nerve impingement at times”. The July 7, 2020 MRI study noted some minor to mild posterior disc prominence at C4-C5 and C6-C7, described in the report as minor degenerative changes.

As noted by the worker in their testimony, it was not until their August 25, 2020 emergency department assessment that the worker began to consider that their symptoms might be the result of their work. The report from that visit indicated the worker presented with neck pain radiating to their right arm, with bilateral hand paresthesia. At that time, the treating physician questioned the worker as to their work situation and the worker indicated they are always turning to the right in their workspace. Clinical findings in the ER included decreased range of motion in all planes, tender right lateral epicondyle, decreased sharp sensation primarily in ulnar distribution. The worker was assessed with neck pain/spasm causing distal neuropathy and the physician recommended treatment with medication and physiotherapy, as well as “re-configuration of work stations – recommend standing desk and computer to be “head on” rather than C spine rotation”. In the report to the WCB, the physician stated that the “workstation needs to be reworked to minimize neck strain”.

On August 27, 2020, in an assessment with their family physician, the worker reported they have been off work and that rest was helpful. The physician assessed radicular pain to the worker’s right hand, with nerve impingement and muscle strain queried “From work position”. In the September 1, 2020 assessment, the treating physiotherapist noted the worker continued to experience a number of symptoms including right side numbness down the arm into their hand, with tightening through their right shoulder blade and spine. On September 9, 2020, the treating family physician was of the view that nerve impingement in trapezoid was most likely explanation for the worker’s neck/arm pain with numbness and on September 24, 2020, the family physician diagnosed nerve impingement with muscle sprain and noted the worker’s report of benefit from physiotherapy and avoiding aggravating activities. A second MRI study on September 30, 2020 revealed mild degenerative changes involving the cervical spine and a small central disc protrusion at C4-C5 that developed since the previous study.

On the basis of the clinical findings and the worker’s reports, the panel is satisfied that there is evidence that the worker sustained injury to their cervical spine, with first onset of symptoms in May 2020 and their symptoms continuing to worsen through the summer months, culminating in the incident the worker described at home on August 24, 2020 which led to the visit to the emergency department the next day and continuing treatment through the autumn of 2020.

The panel then considered whether the evidence supports a further finding that the worker’s injury was the result of an accident arising out of and in the course of their employment. While there is no evidence here of any specific incident or event that directly caused the worker’s injury, an accident, as defined in the Act, includes any “thing that is done and the doing of which arises out of, and in the course of, employment”, that causes injury. Further, the Policy sets out that an injury arises out of employment if the activity giving rise to it is caused by some hazard resulting from the nature, conditions, or obligations of the employment.

The worker’s position is that they sustained injury to their neck due to a hazard resulting from the nature, conditions, or obligations of their employment, specifically the requirement that the worker conduct their job duties in an ergonomically deficient environment. The panel noted that the employer’s ergonomic assessment outlines a number of deficiencies in the workstation setup, and further, that the assessment undertaken on October 20, 2020 arose out of the worker’s complaint and subsequently resulted in changes to the workstation, although by the time the assessment was completed and the recommendations were implemented, the worker was no longer at work due to their injury.

The employer’s representative conducted the ergonomic assessment and the information in that assessment confirms the worker’s description of the challenging physical environment in which they undertook their job duties prior to October 2020. The October 20, 2020 ergonomic assessment describes deficiencies in the workstation including the following:

• “Staff had previously moved the chair to the computer and lean (sic) to the right side in order the (sic) type the required information. In various instances, staff would straddle the corner of the desk to reach for the computer.” 

• “The microphone is located on a stack of two CD crystal cases…approximately 10”/25.4 cm above desk height. Staffs (sic) lean into the microphone when speaking to ensure their voices are heard adequately. Most staff…leans from a static position towards the unit placing [their] spine out of alignment. This lean continued [the worker’s] issue of hyperextending [their] spine to the point where [their] neck hurts after repeated use of the microphone.” 

• “The chair has been in that location, used by multiple staff, since approximately 2006. It was agreed that a replacement chair would be considered as we would modify the chair to a standard seat pan distance and increase the chair back to a high back unit which will provide better support to the back, but also to the thighs and lower back.”

The panel also considered the worker’s explanation of their job requirements which outlined that they were often multitasking with awkward positioning necessitated by the workstation setup and the job requirements. The worker’s further testimony as to the issues related to their office chair is also supported by the findings of the ergonomic assessment.

The worker testified to first noting symptoms in May 2020, as confirmed by the medical reporting. The worker further testified that although there were no changes to their job duties at that time, there was a change in the nature of the department’s work after April 2020. More specifically, that change included an increase in the length and complexity of daily tasks, with a corresponding decrease in the number of quick and easy tasks, such that the worker was more often required to maintain awkward positioning for longer periods of time after April 2020.

This change in the nature of the worker’s job duties correlates to the worker’s onset of symptoms and worsening condition over the course of May through September 2020, as they continued working in an environment of less-than-optimal ergonomics. The panel noted that the primary adjudication of the claim by the WCB pre-dated and therefore could not have taken into account the findings of the workstation ergonomic assessment.

We also note that although the treating family physician did not at first attribute the worker’s symptoms to the workstation issues while exploring other possible explanations, those other possible explanations were ruled out. Further, when the ergonomic causes were diagnosed by the treating emergency room physician, the treating physiotherapist, and the treating physiatrist, the family physician also accepted this explanation for the worker’s presentation. The panel also noted that the treating sport medicine physician on December 16, 2020 outlined in a referral letter for surgical consult that the worker reported that symptoms would largely resolve when not working but would recur easily with neck movements. The consulting surgeon opined in a report dated February 24, 2021that the worker’s neck pain is “likely multifactorial due to ergonomics at work and repetitive strain”, noting the MRI results revealed only “very mild disc disease.”

In light of the opinions of the treating medical professionals, the evidence as to the worker’s job duties and changes in scheduling beginning just prior to the onset of the worker’s symptoms, and the deficiencies noted by the ergonomic assessment which the employer then corrected, the panel finds that the evidence supports the worker’s position that their neck symptoms arose out of and in the course of their completion of their job duties. While there is some evidence of “mild” disc degeneration, there is no evidence before the panel to suggest that this was the cause of the worker’s difficulties.

The panel is satisfied based on the evidence before us, and on a standard of a balance of probabilities that the worker sustained injury to their neck arising out of and in the course of participating in their continuing job duties. This injury was the result of an accident as defined by the Act and the worker’s claim should therefore be acceptable. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 22nd day of December, 2021