The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on March 24, 2000, at the request of the claimant.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The claimant filed an application for compensation benefits on October 1, 1997 indicating that he was experiencing problems with his feet, knees and legs which he related to his employment activities.

File information revealed that the claimant incurred non-compensable multiple injuries in a fall on March 21, 1985, when he fell off a nine-story building onto concrete. Following discharge from hospital, the claimant found work in a lumber yard which involved heavy lifting and walking on a cement floor which did not help his feet which had been injured in the March 1985 fall. The claimant felt that the heavy work he performed between 1989 and 1995 led to his present problems with his feet, knees and legs.

On October 20, 1997, the treating physician described the nature of injuries incurred by the claimant from the fall in 1985. When he first met the claimant in 1996, the claimant had general pain syndrome involving his arms, legs, right shoulder and knees. X-rays of the left shoulder taken December 12, 1996 showed no abnormalities. X-rays of the forearms and hands showed a deformity of the distal left radius, indicating a previous fracture. X-rays of both feet showed advanced degenerative changes between the distal tarsal bones and the bases of the metatarsals, deformity of the shaft of the right foot, fourth and fifth metatarsals, including previous Lisfranc-type of injury and secondary osteoarthritic changes. X-rays of both knees showed the previous supracondylar fracture and left distal femur, with residual screw holes and healed fracture changes with a small metallic fragment present in the surrounding soft tissue next to the adductor tubercle. The right patella had a lower pole fracture, healed residual articular irregularities. A deformity of the lateral femoral condyle also indicated the presence of a previous fracture at this site. In December 1996, the treating physician noted that the claimant was referred to an orthopaedic surgeon whose findings suggest the claimant suffered mainly from post-traumatic changes to the various joints of his feet as well as pain syndrome involving his shoulder.

The physician stated that when he last assessed the claimant on September 23, 1997, he was still complaining of the pain syndrome and that he required Percocet daily for his leg pain. When seen on June 20, 1997, the claimant provided the physician with a 12 page letter outlining his experiences working for a specific Manitoba employer as a warehouse man for some years. The claimant stated that he was forced to work well beyond his physical capabilities all of that time and this had resulted in his legs and feet getting much worse and now making him incapable of working. The physician concluded that the claimant was presently unable to carry on gainful employment mainly because of the pain in his legs, knees and feet. This seemed to be associated with post traumatic osteoarthritis. "It is reasonable to conclude that, if indeed Mr. [the claimant] was consistently pushed beyond his limits for a number of years following his fall and subsequent partial recovery, that the process of post-traumatic osteoarthritis would be hastened, thus contributing to his present disability."

On November 17, 1997, Claims Services determined that the claim for compensation was not acceptable based on sections 4(1) and 1(1) of the Workers Compensation Act (the Act). In the opinion of Claims Services, there was insufficient evidence provided to establish a relationship between the worker's present feet, knee and leg problems and the work he was doing from 1989 to 1995. On a balance of probabilities, Claim Services was of the view that the worker's feet and leg problems were more likely due to the long pre-existing history of osteoarthritis as a result of the severe trauma sustained on March 21, 1985.

In December 1998, an advocate, acting on behalf of the claimant, appealed the above decision. The claimant's position on the matter was that he was medically advised that he could only perform light and sedentary work but instead he had to perform heavy and strenuous duties. The work duties therefore aggravated the condition in his feet, knee and leg and the WCB should take full responsibility for the aggravated condition, which arose out of employment.

In a decision dated January 8, 1999, Review Office acknowledged that the claimant does have some major difficulty with his feet, legs and knees, however the difficulties were the result of a non-compensable incident in March 1985. In accordance with Sections 4(1) and 1(1) of the Workers Compensation Act (the Act), the claimant did not sustain a personal injury both arising out of and in the course of his employment. As no accident had occurred the claim was not acceptable and the claimant was not entitled to payment of benefits.

Review Office stated that where a claimant sustains or aggravates a pre-existing or underlying condition and that pre-existing condition was not work related then no responsibility would be accepted for the aggravation. Only where the claimant sustains a personal injury by an accident arising out of and in the course of his employment and, a non-compensable pre-existing condition is affected, in whole or in part, would the WCB accept responsibility for the full injurious effects of the accident.

Review Office noted that activities of daily normal living including walking on sidewalks or concrete, hard ground or otherwise, do not constitute an accident. It was recognized that the claimant does experience difficulty resulting from the non-work related non-compensable incident of March 21, 1985. The WCB, however, would not assume any responsibility for the aggravation of that condition. Review Office sympathized with the claimant's position but could not recommend that any responsibility be accepted with respect to any of his complaints.

On October 12, 1999, a worker advisor requested Review Office to reconsider the decision of January 11, 1999. Enclosed with the submission was correspondence received from the claimant in which he provided information regarding the working conditions with his employer, a letter from an orthopaedic specialist dated September 8, 1999, a certificate by the Society for Manitobans with Disabilities Inc. dated May 14, 1992, a disability certificate dated March 1, 1991 and a TOJ Summary dated February 1, 1990. The claimant was of the view that the work duties he was required to perform were outside his medical restrictions of sedentary or light work, and that the additional work duties caused him great difficulties with his pre-existing conditions.

Prior to considering the appeal, Review Office obtained statements from the owners of the company where the claimant had worked. On December 1, 1999, the present owner of the company confirmed that the claimant worked with the company from 1989 to August 18, 1995. The claimant quit employment because he said his body couldn't take working anymore in the shipping and receiving area.

The job duties performed by the claimant consisted of receiving inventory which came in boxes, skids and other forms. The floor was concrete and the claimant would have to walk a lot during the day. A forklift was available which the claimant used and he was required to manually fill shelves and fill orders. The majority of the work involved handling hardware for doors. The claimant helped to fill orders for hollow metal doors. He could have assistance in lifting if needed. The hollow metal doors would be the heaviest item the claimant would have to lift. The doors weighed about 80 lbs. The claimant was considered to be a hard worker but didn't have very good people skills. The claimant was placed at the order desk in the sales department as a transition into a sales position. The claimant did not do very well on the order desk so he was moved back to shipping and receiving.

In a December 9, 1999, telephone conversation with the original owner of the company, it was documented by a WCB field representative that the claimant worked for them prior to the fall in 1985. He resumed working for them after he had recovered from the injuries sustained in the 1985 fall. The claimant was responsible for placing or removing inventory from shelves. The warehouse had cement floors, was heated, with shelves and hardware. When the claimant worked, he was the main shipper/receiver and basically worked alone. There was a forklift available as the company dealt with steel and wooden doors. It was also confirmed that the claimant had been placed on the order desk to try and advance him within the company, but this did not work because of the claimant's personality style. When the claimant did not work out on the order desk, he agreed to go back to shipping and receiving and another worker was offered the order desk position. The owner was of the impression that the claimant quit the job mainly because he was unhappy about not being advanced within the company. The claimant had complained about pain but he had done so ever since the 1985 fall and the company assumed this was a natural consequence of the physical damages sustained in the fall.

On December 10, 1999, Review Office confirmed that the claim for compensation was not acceptable and that the worker had not sustained a personal injury by an accident arising out of and in the course of his employment. Review Office was of the view that the additional information did not lead to the conclusion that the claimant sustained personal injury by reason of an accident. Review Office stated there was no doubt the worker suffered from many physical difficulties as a result of the fall in 1985 and that would make many types of employment difficult for him. This, however, did not constitute an accident. It would seem that the employer knew this worker prior to the 1985 fall and they continued to employ him afterward until the worker quit in 1995. There was no indication that the worker's inability to continue with his employment was caused by an accident on the job.

On February 5, 2000, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,

2. any

1. event arising out of, and in the course of, employment, or

2. thing that is done and the doing of which arises out of, and in the course of, employment, and

3. an occupational disease

and as a result of which a worker is injured."

After having thoroughly reviewed the evidence on file, we find that there has been no defined accident within the meaning of the Act. Therefore the claim is not acceptable and the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of March, 2000