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 teleconference hearing was held on June 15, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On October 21, 2021, the worker filed a Worker Incident Report with the WCB reporting an injury to their right hand, wrist and whole arm as the result of an incident at work on October 15, 2021. The worker noted a seasonal increase in their job duties, in addition to their regular duties involving "…repetitive motions caused strain, pain, numbing and tingly to my right arm, hand and wrist and required me to be off work to rest on Tuesday, October 19 & Wednesday, October 20 as it did not get better over the weekend…" The worker reported the injury to the employer on October 19, 2021.

The worker attended for medical treatment with their treating family physician on November 1, 2021, reporting numbness in the medial part of their right wrist that travelled up their arm and numbness and pain in their hand, which they related to an increase in their repetitive computer work. The worker reported their arm felt better when they were resting and away from work. The worker further advised they "became really symptomatic with pain and numbness October 15 and then unable to work October 19 and 20---with pain and numbness, re aggravated when returns to work". After examining the worker, the treating physician noted normal grip strength and normal reflexes with no swelling or redness but tender lateral and medial epicondyles and lateral forearm and provided a diagnosis of carpal tunnel syndrome and forearm tendonitis. The worker was referred for a nerve conduction study and physiotherapy and massage were recommended, along with an ergonomic assessment of the worker's workstation. A copy of the sick note for October 19, 2021 and October 20, 2021 was included.

The worker attended for an initial physiotherapy assessment on November 5, 2021. The worker described a sudden increase in pain in their right wrist that radiated into their fingers and up their forearm past the elbow. The worker's complaints were noted to be pain in their right wrist and fingers, better at night and in the morning, with increasing symptoms during the day after computer/mouse work and worse with increased workload. Numbness and tingling into their right hand, noted as their third, fourth and fifth digits, was also noted. The physiotherapist recorded a slight restriction in wrist flexion and a positive Cozen's test and for lateral epicondylitis. A diagnosis of right extensor digitorum tendinopathy and radial nerve irritation was provided. It was recommended the ergonomics of the worker's desk should be reviewed and the worker may require frequent breaks from their computer during the work day.

On November 12, 2021, the WCB contacted the worker to discuss this claim. The worker advised they had a gradual onset of their symptoms, described as pain, shooting up into their arm, which they related to an increase in their workload. It was noted that October 15, 2021, the symptoms were really bad and the worker required two days off to rest. The worker noted the pain is better with rest but when the symptoms flare up, there is numbness and tingling that travels up their right arm. The worker provided they had previous issues with their right hand and had provided the employer with a notice of injury two years prior to this incident but did not miss work that time. The worker advised the WCB they related their symptoms to their job duties of working "In front of a computer all day keyboarding and using the mouse".

The employer provided an Employer Incident Report to the WCB on November 15, 2021 indicating the worker reported pain, numbness and tingling in their right hand on October 19, 2021 and had those symptoms since October 15, 2021.

The WCB advised the worker on November 12, 2021 their claim was not acceptable. The WCB determined it could not be established the worker sustained an accident arising out of or in the course of their employment as work-related repetitive strain injuries were generally found with job duties that involve high force and repetition, with wrist movements such as twisting, gripping, pulling, pinch pressure and wrist flexion/extension with sufficient exposure. It was noted the worker had been performing their job duties in their current position for a number of years with no recent changes to their work duties and as such, a relationship between their current difficulties and their employment could not be established.

On November 25, 2021, the worker requested reconsideration of the WCB's decision to deny their claim to Review Office. In their submission, the worker noted there had been an increase in their workload prior to the onset of their symptoms and listed the increased number of applications they had to process during the time before they reported the October 15, 2021 workplace accident. Further, the worker noted they had reported their symptoms to the employer in 2014 and 2019 and provided copies of the Notice of Injury for each incident they had submitted to the employer. The worker noted their belief their cumulative injury was aggravated by the increased workload, which required them to be off work for two days due to the constant pain. On December 24, 2021, the employer provided Review Office with a submission in support of the WCB's decision to deny the worker's claim and on January 12, 2022, the worker submitted a response to Review Office.

Review Office upheld the WCB's decision on January 25, 2022 and determined the worker's claim was not acceptable. Review Office acknowledged the worker's job duties involved varying levels of data entry with times of increased workload; however, Review Office found the activity of keyboarding involved "…very limited force of movements against resistance placed upon the hand and wrist…". Further, Review Office reviewed the duties listed by the worker and found those duties would not be considered repetitive. As such, there were no forceful, repetitive duties and the worker was found not to have sustained an accident in the course of their employment.

The worker filed an appeal with the Appeal Commission on February 10, 2022 and a teleconference hearing was arranged for June 15, 2022.

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 provisions of the Act in effect as of the date of the worker’s accident are applicable. Subsection 4(1) of the Act provides that where a worker is injured in an accident, the worker is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay for wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

The term “accident” is defined in Subsection 1(1) of the Act and provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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, provides further explanation of the meaning of the term ‘accident.’ Policy 44.05 states in part as follows:

Generally, an injury or illness is said to have ‘arisen out of employment’ if the activity giving rise to it is causally connected to the employment – that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred “in the course of employment,” an injury or illness must have occurred within the time of employment at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

In other words, an accident will have arisen out of employment if there is a causal connection between the activity that caused the injury and employment and it will be considered to have occurred in the course of employment if the injury occurred during working hours at the place of employment and while the worker was involved in activities incidental to employment.

Worker’s Position:

The worker represented herself at the hearing. It was the worker’s position that the claim ought to be acceptable and the appeal allowed.

The worker provided a history of the development of pain in her right arm. She indicated that although she began her position in 2008, she did not develop symptoms in her right arm until the fall of 2014 when she began to experience right arm pain as her workload increased. She reported the claim to her employer but did not seek medical attention.

The worker provided the panel with a description of her work duties. Her typical day involved working on a computer, including both keyboarding and using a mouse, as well as using a calculator and doing some writing. The worker further said that level of work increases substantially each fall between the months of September and November when she is responsible for preparing and completing records of employment, lay-off notices, recall notices, and a number of other documents for seasonal workers. During periods of increased workload, she works longer hours with fewer breaks.

The worker says that since 2014, she has experienced an increase or flare up of pain every fall between September and November commensurate with the increase in her workload. She did not, however, file a further notice of injury until September 26, 2019, explaining that she had been told that she only needed to file a notice of injury once for a recurring injury.

In October 2021, in response to a renewed flare-up of pain, the worker filed a claim with the WCB. For the first time since 2014, she also sought medical attention regarding her arm pain and was diagnosed with tendonitis. She was referred to physiotherapy where she was given home exercises and advised to use a TENS machine. The worker says that although she continues to use the TENS machine, the pain persists and is now chronic.

The worker relates her annual increase in arm pain each fall to the substantially increased workload she experiences and the repetitive use of the mouse and keyboard. In her view, the pain is directly related to her work activities and, as such, her claim ought to be acceptable.

Employer’s Position:

The employer was represented by a WCB coordinator. It was the employer’s position that the worker’s bilateral lateral epicondylitis was not causally related to the performance of the worker’s job duties and the appeal should therefore be denied.

The employer submitted that the worker’s duties were neither physically nor anatomically consistent with the occupation-related causes of lateral epicondylitis. It was stressed that lateral epicondylitis typically develops as a result of repetitive duties that involve a measure of force. Repetitive duties alone did not usually result in epicondylitis. Although the employer conceded that worker’s use of a mouse or keyboarding may involve a measure of repetitiveness, the employer submitted that neither keyboarding nor the use of a mouse involved the measure of force necessary to cause epicondylitis. Keyboarding and using a computer mouse were also not work duties known to be occupational risk factors for the development of tendonitis or epicondylitis.

As such, it was the employer’s position that the evidence did not support the worker’s claim that her right arm difficulties were causally related to the performance of her job duties. The appeal should therefore be denied.

Analysis:

The issue before the panel is whether or not the worker’s claim is acceptable. In order for the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker’s right arm difficulties are causally related to the worker’s duties. For the reasons that follow, the panel is unable to make that finding.

The panel carefully reviewed the history. Although the worker began her position in 2008, she did not begin to experience symptoms until 2014. From that point forward, she says her symptoms increased or flared up annually each fall. Despite having issues with her right arm each fall, however, the worker did not seek medical attention until October 2021. At that time, she was referred to a specialist for nerve conduction studies to rule out carpal tunnel syndrome, among other things. While the testing results were normal, the specialist added that “… physical examination findings could be in favour of bilateral lateral epicondylitis (tennis elbow). The intensity was more on the right side comparing to the left.” The worker was provided with some pamphlets regarding tennis elbow and a home exercise program. Although the worker has continued to experience symptoms, the worker has not followed up further with her physician or physiotherapist.

The medical evidence on file was limited. Although the medical evidence that is included on the file confirms a likely diagnosis of lateral epicondylitis or tendonitis, there is a lack of evidence supporting the conclusion that the injury was caused by workplace activities.

The panel has also considered the worker’s description of her daily activities. Although the activities involve the repetitive use of a keyboard and mouse, they are not repetitive movements against resistance, and do not involve an element of force, or any pushing or twisting motions. They are not, in other words, the kinds of activities normally known to cause or contribute to the type of injury at issue in this case.

The absence of a medical opinion supporting a causal connection to workplace activities, along with the fact that the daily work activities in this case are not known to contribute to epicondylitis, leads the panel to conclude that a causal relationship between the injury and the workplace has not been established. While the panel has sympathy for the worker and does not doubt that the worker is experiencing pain in her arm, elbow and wrist on an annual basis each fall, the panel is not satisfied that the worker’s employment duties caused or contributed to the symptoms she experiences, a necessary pre-requisite for the worker’s claim to succeed. Consequently, while the panel accepts that the worker has continued to suffer from ongoing periodic flare ups of right arm pain, the panel is unable to find that the worker’s difficulties are causally related to the workplace.

Based on the foregoing, the panel finds, on a balance of probabilities, that the claim is not acceptable. The worker’s appeal is therefore dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of August, 2022