The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 13, 2000, at the request of the claimant. The Panel discussed this appeal on April 13, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On March 19, 1999, the claimant filled out an application for compensation benefits with respect to plantar fasciitis of both feet which he related to his occupation as a night cook. The claimant described the accident, which caused him to miss time from work commencing March 14, 1999, as follows:

"Standing on feet for long periods in one area and working and walking on very hard surfaces; soles of feet gave out, became swollen and inflamed with extreme soreness and tenderness. Extended from heel of both feet to ball of both feet."

The employer's report of injury dated March 19, 1999, indicated that the claimant had been complaining of sore feet for as long as he had been working for the company. On Sunday (March 14, 1999) he phoned to say he wouldn't be in. The claimant went to the doctor on Monday or Tuesday and was told he had plantar fascitis from walking and standing.

A doctor's first report dated March 29, 1999, indicated that the claimant was first treated on March 16, 1999. The diagnoses reported were plantar fasciitis and shin splints. The claimant was prescribed rest, ice, and medication and was later referred by the physician for physiotherapy treatments.

On April 21, 1999, a Workers Compensation Board (WCB) adjudicator telephoned the claimant to obtain additional information about his claim. The adjudicator documented that the claimant had started work as a cook with the accident employer in August 1998 and initially worked full time. He said that a lot of the staff were let go or had their hours cut and the claimant was cut down to thirty hours per week in February 1999. He did regular kitchen work in addition to helping out the bar staff. The claimant walked to and from work, which was probably a little over a mile each way.

The claimant told the adjudicator that he had been working as a cook for about 15 years. He said that he never wore out shoes as quickly as he did with the accident employer. The floor was very hard and he asked for mats to be installed which the employer did. It didn't seem to help. The claimant said that in his experience, a pair of shoes would last about a year while working in a kitchen environment, however, he had gone through three pairs of shoes with the employer between August 1998 and the day he left work in March 1999. The claimant indicated that the symptoms in his feet began in February 1999. He went to see his family doctor and was referred to a specialist. The specialist asked him whether he had new shoes. He told the specialist that he had just bought a new pair. The claimant told his employer about the symptoms. The pain became progressively worse and worse until March 14th when he had to get the boss to drive him home.

The adjudicator advised the claimant that the problem with plantar fascitis was that there could be many causes. It could occur in people who spend a lot of time on their feet or in people who don't spend a lot of time on their feet. The adjudicator told the claimant that it was unlikely he could accept the claim, but would review the medical information and render a decision as soon as possible.

In a letter dated April 28, 1999, the adjudicator advised the claimant that plantar fasciitis could not be related specifically to walking or standing on hard surfaces. While the diagnosis of shin splints was consistent with activities such as excessive walking or bouncing on hard surfaces, establishing that it was work related had to be mitigated by the fact that he walked to and from work every day. After reviewing the available information, the adjudicator could not establish that an accident, as defined in the Workers Compensation Act (the Act), occurred while the claimant was in the course of his employment.

On July 12, 1999, a worker advisor appealed the above decision to Review Office. The worker advisor was of the opinion that the claim should be accepted on the basis of the wording of WCB policy 44.10.20.10, as an aggravation of a pre-existing condition.

In a decision dated July 30, 1999, Review Office indicated that in order to apply WCB policy 44.10.20.10 there had to be a compensable accident. Once a compensable accident had been established, one would then be able to assess the accident's interaction with any pre-existing condition(s) with respect to WCB responsibility. It was noted, however, that the claim for bilateral plantar fasciitis being a compensable accident, has not been defined or accepted by the WCB. Therefore, policy 44.10.20.10 could not be applied.

Review Office concluded that it was unable to establish anything more than a speculative relationship between the claimant's bilateral plantar fasciitis and his employment. The worker's feet complaints could not be associated with an injury at work.

In a letter addressed to Review Office dated August 5, 1999, the worker advisor presented argument that the conditions to which the claimant was exposed to in the workplace contributed to his disablement. On August 23, 1999, the Review Office wrote to the worker advisor stating the following:

• that it was anatomically impossible for shin splints to affect an individual's foot.
• that there was no evidence of any accident occurring at the workplace involving the claimant's shins;
• that it would not seem logical to presume that the claimant's duties as a cook would be more likely to cause shin splints than the activities of his daily living, which included walking over a mile to and from work.
• as no compensable accident was involved, policy 44.10.20.10 could not be applied to the matter.
• Review Office did not accept the diagnosis of bilateral plantar fasciitis as being compensable and being related to the claimant's duties as a cook, or that the diagnosis of bilateral shin splints was compensable and related to the claimant's occupation as a cook.

The worker advisor appealed Review Office's decision and an oral hearing 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."

Gradually over the period of several months, the claimant developed swollen and inflamed feet. He attributed this foot problem to his work activities, which required him to walk and stand on a particularly hard surface for extended periods of time. The claimant's condition was eventually diagnosed as plantar fasciitis. Review Office rejected the claim based on the following reasoning: "The predominant opinion found in medical literature on this condition essentially negates any causal relationship between the diagnosis of plantar fasciitis and any form of employment. Review Office also points out that in researching claims history of plantar fasciitis at the Workers Compensation Board that no causal link has been established between the general duties of either a cook or a bartender and the diagnosis of plantar fasciitis."

The worker advisor, acting on behalf of the claimant, submitted in evidence several medical articles, which do in fact support a relationship between plantar fasciitis and occupations requiring long periods of standing or walking. The claimant testified that he had been working as a chef for over fifteen years and not once did he ever have similar problems with his feet. In the approximate nine months that he worked for the accident employer, the claimant went through three pairs of expensive footwear. His extensive job duties caused excessive wear to the cushions in the heels of the shoes such that they had to be discarded. The claimant further testified that he used these shoes exclusively at work and only in the restaurant.

We find based on the weight of evidence and on a balance of probabilities that the claimant's plantar fasciitis arose out of and in the course of his employment. Accordingly, the claim is accepted and the appeal is allowed.

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 8th day of May, 2000