Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100150
Objection By: Worker, Employer
Participants: Worker, Worker Representative, Employer Resource, Employer Representative, Employer Witness - Supervisor
Hearing Date: September 24, 2010
Issues
1The worker is objecting to the denial of entitlement to loss of earnings (LOE) benefits May 15, 16, and 23, 2008, the denial of LOE benefits June 16, 2008 to June 27, 2008, the denial of partial LOE benefits June 30, 2008 to July 18, 2008, as well as the denial of LOE benefits July 29, 2008 to July 31, 2008.
2The employer is objecting to the granting of initial entitlement and the payment of any LOE benefits.
How the Issues Arose
The worker completed and returned a Worker's Report of Injury/Disease (Form 6), providing an accident date of May 14, 2008 and indicated that while working as a revenue services clerk with a municipality, she was moved to a workstation on May 12, 2008 and after approximately three days of work at the new workstation started to experience acute pain around her shoulders, neck, right arm and also acute headache, dizziness and nausea. She also described her work duties on the Worker's Report of Injury/Disease (Form 6).
The employer completed and returned an Employer's Report of Injury/Disease (Form 7), indicating that the worker reported that the height of her new desk could cause an injury to her neck, both shoulders as well as the right hand. At the time the Employer's Report of Injury/Disease (Form 7) was filed by the employer, they did not express any concerns about the filing of the claim.
The claims adjudicator considered entitlement in correspondence of July 22, 2008. At that time it was noted the worker claimed an onset of neck and shoulder pain was due to an incorrect set up of the workstation, and it was noted the worker had moved to a different workstation and started to feel pain in the shoulders and neck, and an ergonomist recommended that there should be changes to the workstation. The claim was allowed as a disablement, gradual onset over time noting the incorrect set up of the worker's workstation, and it was noted the employer got offered modified duties on June 19, 2008. The worker did not return to work until June 30, 2008. It was noted by the adjudicator that a WSIB medical consultant reviewed the level of impairment when the employer offered suitable modified duties on July 16, 2008, and there was insufficient detailed medical information on file however the medical information did not provide physical findings supporting total disability beyond June 19, 2008. The adjudicator concluded that LOE benefits would be accepted from May 29, 2008 until June 19, 2008, when the worker was expected to return to suitable modified duties, and a gradual return to work had not been approved at that time.
In further correspondence of July 30, 2008, the claims adjudicator once again reviewed entitlement and noted that the employer had confirmed that they had made a verbal offer of modified duties to the worker on June 13, 2008. The expected return to work date was June 16, 2008, and noting this verbal offer, the adjudicator corrected the letter of July 22, 2008 and LOE benefits were approved to June 13, 2008 inclusive only.
In further correspondence of August 21, 2008, the adjudicator once again considered ongoing entitlement. It was noted once again that the claim had been allowed for an onset of shoulder and neck pain due to an incorrect set up of the worker's workstation, and the worker returned to work June 30, 2008 and claimed further lost time as of July 29, 2008. A note of July 29, 2008 stated that the worker would be off work as needed, however since no detailed physical findings were provided that supported total disability until August 1, 2008, the recurrence of July 29, 2008 was not approved as medical submitted to the claim record did not provide findings to support that the worker was totally disabled due to the workplace onset.
In further correspondence of November 3, 2009, an explanation was provided to the employer in regard to the allowance of the claim. It was noted that in correspondence of September 24, 2009 the employer was objecting to the allowance of the claim as there was no incident that caused the worker's disablement. At that time it was noted the worker had moved to a new workstation on May 13, 2008 and claimed that the workstation was set up incorrectly and this caused neck and shoulder pain. A workstation checklist was completed on May 28, 2008 and an ergonomic assessment was done on June 11, 2008. The findings of the ergonomic assessment were that her desk was too high for her stature and it was lowered by four inches. Her new chair was adjusted to allow for correct seated posture, and the computer monitor was lowered and the space between her desk was cleared to allow her to sit closer to her desk to reduce the amount of reaching. It was concluded that the incorrect set up of the workstation had caused the onset of neck and shoulder pain, and the allowing of the claim was confirmed on a disablement basis with a gradual onset. It was noted that there was no entitlement for headaches, vertigo and nausea.
The worker has objected to the limitation of LOE benefits, and the employer has objected to the granting of initial entitlement as well as any subsequent LOE benefits.
Authority Reference
Operational Policy Documents:
15-02-01 – Definition of an Accident;
15-02-02 – Accident in the Course of Employment;
19-02-02 – The Goal of Early and Safe Return to Work (ESRTW) and the Roles of the Parties;
19-02-03 – Workplace Party Co-operation.
Assessment of the Evidence and Submissions
All of the information on the claim record has been carefully considered, particularly as it relates to the employer objection to the granting of initial entitlement and any associated LOE benefits, as well as the worker objection to the limitation of LOE benefits.
At the time of the hearing, the worker indicated that she works in the Revenue Division for a municipality and has been there for over 20 years. In November 2003 she moved from one Civic Centre to another Civic Centre, and she described her job as a typist clerk and she issues property tax bills and water bills to residents. Her job involves deleting and adding new property owner information, and 90 to 95 per cent of her job is sitting in front of her computer and she would then spend half an hour at the end of each day doing filing.
In May 2008, her section moved from one area of the floor to another area of the floor, and as a result she was provided with a new workstation. Her job duties were the same but the workstation was different, and she was not there at the time of the move because she was off ill the first week of May 2008. She returned to work from non-compensable sickness on May 12, 2008 to her new workstation, and she indicated that she had been at her previous workstation from November 2003 until the move that occurred in May 2008. She denied any prior problems with her prior workstation, and indicated that it was never necessary to have an ergonomic review done on the prior workstation. She described the set up of her previous workstation, and once again indicated that there was no problem with the previous set up, even though her chair was quite old.
She returned to work to her new station on May 12, 2008, and at that time noted that there was an L-shaped workstation with cupboards on top, and her monitor was on the right side on the table. Her monitor was adjustable, and she had a keyboard tray under the desk which was adjustable. She was provided with a new chair around June 9, 2008, and this new chair was adjustable and had arm rests as well as a foot rest at her desk as of May 12, 2008.
When she returned to work from her non-compensable illness on May 12, which had been an allergic reaction to an insect bite, she indicated that she spent a few hours getting organized and getting her desk set up, and indicated that she did not have any problems with her neck and shoulders at the time she returned to work. She did her normal job for what was left of the day, and was fine at the end of the day on May 12, 2008. On May 13, 2008 she did some clerical duties, which were the same as her regular duties, and noticed in the afternoon that she was developing pains in the neck as well as both shoulders. She said nothing specific occurred to cause her pain, and noted that on May 14, 2008 she did the same clerical job and had pain in the neck and shoulders. She confirmed there was no change in her duties but the pain gradually increased in the afternoon and she finished her shift and went home and took medication. She still had her old chair at that time so she tried to raise it so she could sit properly at her workstation, and she asked a co-worker for help and he could not adjust her chair as it was quite old. She felt that her condition was caused by the workstation set up because everything else in the job was the same, with the exception of a new workstation and her chair was too low.
She indicated that she reported to her supervisor on May 14, 2008 complaining of neck and shoulder pain as well as dizziness and vomiting. Her first medical attention was on May 29, 2008, and she confirmed getting a verbal offer of modified work from her supervisor on June 13, 2008 but the worker said that her workstation was not adjusted until June 16, 2008. She returned to work June 30, 2008 on a graduated basis and complained to her claims adjudicator that her workstation needed to be adjusted again, and final adjustments were made to the workstation on July 14, 2008.
Testimony was also provided by the worker's Supervisor. The supervisor confirmed she had been with the employer since 1988, and had done a number of clerical jobs becoming the worker's supervisor in September 2004. She confirmed the basic job description and duties as provided by the worker, and indicated that the workers are able to take breaks at any time and can self-pace their work. The supervisor also confirmed the move in May 2008 to a different area on the same floor, and confirmed that the worker's job duties were the same as prior to the move. The job involved clerical duties as well as opening mail, sorting mail, stamping mail, and filing. The supervisor also described a set up of the workstation, which confirmed the prior testimony given by the worker in regard to the set up of the workstation. The supervisor also confirmed that the worker started at her new workstation on May 12, 2008, and the supervisor also confirmed that on May 14, 2008 she was told by the coordinator that the worker had a problem adjusting her chair. There was an e-mail May 15, 2008 that the supervisor sent to the worker offering to help adjust her workstation, and the supervisor also indicated that she sat with the worker to arrange the desk and indicated that the worker's complaints were addressed by way of an ergonomic review which was done on May 28, 2008.
It was further explained that the employer tries to do the ergonomic review first by themselves and they would then call an ergonomist if the problem is not resolved. She stressed that the desk was only one-eighth of an inch higher than the previous desk, and the problem could not be resolved so they needed a formal ergonomic review which was done on May 28, 2008. The supervisor indicated that the first time that she was told about a WSIB claim was on June 18, 2008, and prior to June 18, 2008 the worker did not advise her that it was a WSIB related problem so no report was done and it was treated as an illness. The City ergonomist came on June 10, 2008 and wanted the desk lowered by four inches, and the supervisor indicated that the worker could have been moved to another desk to do some filing or some other type of work. The supervisor also confirmed that the worker did not complain of any pain prior to being put at her new workstation, and indicated that the desk was lowered four inches on June 13, 2008, and on June 13, 2008 the worker advised the supervisor that she had shoulder pain, headaches and vomiting, and the supervisor did confirm that the worker complained about the set up of her workstation. She did however stress that there was no quota on the worker's work output and she could take breaks and move as needed.
The worker then provided further testimony regarding the onset of her injury as well as her absence. She was absent from work on May 15, 2008; May 16, 2008; and May 23, 2008, and indicated that she did not seek medical attention until May 29, 2008. She explained the delay in seeking medical attention was due to the fact that after a few days off she felt better so she did not see her doctor, but then upon returning to work when her condition became worse she found it necessary to seek medical attention. She indicated she attempted to return to work on June 6, 2008, and developed pain in her shoulders and upper back after a few days at work, and on June 9, 2008 she returned to work with her new chair and the ergonomist came June 10, 2008. She said she spoke to her Supervisor, on June 9, 2008 and said that her work table was too high, and confirmed that she told the supervisor that the desk was too high and it was causing her neck and shoulder pain.
On June 12, 2008 she saw the doctor again and was told to stay off work until June 27, 2008 and faxed this note to her supervisor on June 16, 2008. She confirmed that the supervisor called her on June 16, 2008 to advise that the desk had been lowered by four inches, and she also indicated that on June 19, 2008 she got a further letter from the supervisor but the duties described were her regular duties.
She returned to work on June 30, 2008 to partial hours until July 18, 2008 and these were reduced hours on the same job. She was told by her supervisor that she could take extra breaks, and she did not do the mail while on reduced hours. Her pain improved while on modified hours, and she returned to work on a full time basis on July 21, 2008 to regular duties at full hours.
She indicated that her job also involves doing mail duties which are rotated every five weeks, and she was assigned the mail duties the week of July 28, 2008. She described the mail as a large stack of letters that are received each day and they are opened and stamped manually and it would take a whole day to do the mail. The letters are sorted into piles, and there could be hundreds of pieces in a day, and you would normally open the mail in the morning and would input any information in the afternoon. She described that she would need to press down hard with a stamp, and she had some pain July 28, 2008 but not too much. On July 29, 2008 she came in and started doing the mail duty again and her pain worsened after she started opening the mail. The pain became severe in the upper back and neck as well as both shoulders and she had vomiting, and her husband picked her up and took her to Emergency where she was provided with three needles and was told to be off work due to the pain in her shoulders and neck.
She also testified that after the return to work in August 2008 she asked the supervisor for a stamping machine that was not manual, and the supervisor kept her off of mail duty until October 2008 when the new electric stamp machine was brought into the workplace.
The worker indicated that she filled out her Form 6 June 20, 2008, and had never had a WSIB claim before and did not understand the process of filing a claim.
In reaching a decision in this case, I have considered all of the information on the claim record including the reporting on the claim record, the testimony provided by the worker, as well as the arguments put forward by the worker representative and the employer representative.
The worker is claiming entitlement to a repetitive strain injury to the neck and shoulders, and although the worker had other non-compensable and underlying conditions, that in itself does not preclude her from developing a new work-related condition. The worker indicated that when she returned to her new workstation on May 12, 2008, she did not have any pain in the neck and shoulders, and both the worker and the supervisor confirmed that the worker had never complained about her workstation before nor had she complained about problems with the neck and shoulders. The change in the workstation occurred and the desk needed to be adjusted four inches which confirmed that the workstation was not ergonomically correct. Even though it was not a significant change from the old workstation, the ergonomist confirmed that the workstation was not set up correctly for the worker's stature, and a significant adjustment in the amount of four inches was required.
The doctor diagnosed a repetitive strain injury to the neck and shoulders, and indicated that this was due to her workstation and poor posture at the new workstation. She was diagnosed with a repetitive strain injury to the neck and shoulders which coincides with the desk being lowered four inches, and the worker is a long term employee who had never had a WSIB claim so the delay in filing a claim and reporting work-relatedness is reasonable. She said that she only became award of the work-relatedness after the meeting with the ergonomist, and did not understand the filing process as she has never had a prior WSIB claim before.
The employer has argued that vertigo and dizziness are a factor in this claim, but at the time of the hearing the worker testified that although she experienced vertigo in 2006, there was no evidence of an ongoing problem of dizziness, and this was confirmed by the testimony of the supervisor. The worker had a pre-existing cervical condition but this may have been aggravated by the ergonomically incorrect workstation, and the workstation was changed, as it was not ergonomically correct and the worker developed an onset after being placed at a new workstation that was not set up properly. The doctor related the condition to the workstation, and therefore I am satisfied that the worker suffered a work-related strain to the neck and shoulders as a result of an ergonomically incorrect workstation, and therefore the entitlement is confirmed. There is no entitlement to nausea, or dizziness.
The worker is also objecting to the limitation of LOE benefits, and is claiming entitlement to benefits for the periods previously outlined.
The worker is claiming entitlement to LOE benefits May 15; May 16; and May 23, 2008, but noting that the worker did not seek medical attention until May 28, 2008, there is no entitlement to LOE benefits from May 15; 16; and 23, 2008.
The worker is also claiming entitlement to LOE benefits June 16, 2008 to June 27, 2008, and the worker was seen again for medical attention on June 18, 2008 and it was noted she did not have improvement and was told to stay off work until June 30, 2008 and then return to work on modified duties which she did. I am satisfied that the worker followed the instructions of her treating doctor and therefore is entitled to LOE benefits for the period June 16, 2008 to June 27, 2008.
The worker is also claiming entitlement to partial LOE benefits June 30, 2008 to July 18, 2008 when she attempted a graduated return to work on graduated hours at her new workstation. She was authorized by her doctor to return to work on a graduated basis and continued to seek medical attention on July 6 and July 11, 2008 and was still considered to be fit for reduced hours only. The worker did attempt to return to work as able, and did cooperate and was authorized to return to work only on graduated hours by her doctor, and I am satisfied that she is entitled to partial LOE benefits June 30, 2008 to July 18, 2008.
The worker is also claiming entitlement to LOE benefits July 29, 2008 to July 30, 2008, and as previously described the worker was put back on the mail duties as of July 28, 2008 and the repetitive stamping and sorting caused her condition to flare up to the point where it was necessary that she be treated at Emergency and given three injections. The employer also replaced the manual stamp with an automatic stamp as of October 2008, which further suggested there was a problem with the stamp, and I am satisfied that the worker had a flare up of her condition and is entitled to LOE benefits July 29 to July 31, 2008.
Conclusion
The Appeals Resolution Officer (ARO) confirms the granting of initial entitlement.
The ARO denies entitlement to LOE benefits May 15; 16; and 23, 2008.
3The ARO grants entitlement to LOE benefits June 16, 2008 to June 27, 2008.
4The ARO grants entitlement to partial LOE benefits June 30, 2008 to July 18, 2008.
5The ARO grants entitlement to LOE benefits July 29, 2008 to July 31, 2008.
The worker's objection is granted, the employer's objection is denied.
DATED September 27, 2010
D. Mosser Appeals Resolution Officer Appeals Branch