The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 18, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 18, 2000 and December 7, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On September 29, 1997, the claimant submitted an application for compensation benefits resulting from stress fractures of both feet which he related to his occupational duties as a security officer. The date of accident was recorded as August 21, 1997 and the employer was notified of the injury on August 22, 1997. The claimant's last date of work was September 7, 1997 as he thought that he had only strained or sprained his feet.

In a telephone conversation with a Workers Compensation Board (WCB) adjudicator on November 3, 1997, the claimant indicated that he first noticed pain in his left foot on August 21, 1997, while patrolling the building. He did not have any type of trauma, he was just walking. The claimant reported the pain in his left foot to his employer the following day but continued working. The pain became progressively worse and he started to develop pain in his right knee which he attributed to overcompensating for his left foot problem. The claimant stated that he at been at his job for six years. When he works nights, he does 3-4 foot patrols of the building which takes about 45 minutes each. While at work he walks on carpeted and granite floors. He normally wears hush puppies while at work and running shoes outside of work. The claimant advised that he had developed previous ankle pain in May 1996.

A doctor's first report dated September 8, 1997, noted right knee swelling and tenderness in the metatarsals of both feet, the left more than the right. The diagnosis was 2-3-4 stress fractures of the left foot and the claimant was referred to physiotherapy.

An x-ray report of the left foot dated September 8, 1997, noted fractures involving the proximal shafts of the second, third and fourth metatarsals. The right foot did not show an acute or healing fracture. The right knee showed no joint effusion and mild degenerative spurring was demonstrated about the medial joint line.

On November 4, 1997, a WCB medical advisor was asked to provide an opinion with respect to whether the diagnosis was consistent with the worker's job demands. In response, the medical advisor replied, "No, because the worker's job doesn't involve a lot of standing & walking."

The file was then forwarded to a WCB orthopaedic consultant for a second opinion. In a memo dated December 9, 1997, the orthopaedic consultant stated, "Most unusual to develop stress or fatigue fractures in 3 metatarsals in a healthy patient but it can happen. One should probably R/O (rule out) underlying metabolic problem, etc. Furthermore, stress fractures of the forefoot usually occur through the neck of the metatarsal and not the reported 'bases'. No reported evidence of any pre-existing condition."

On December 19, 1997, Claims Services advised the claimant that his claim for compensation was not acceptable. The rationale for the decision noted that the claimant had a spontaneous onset of pain in his foot while walking at work. In addition, there were no hazards nor did he sustain any type of trauma to his foot. It was the opinion of Claims Services that walking did not constitute an accident. On March 24, 1998, a union representative appealed this decision to Review Office.

In an April 3rd, 1998, decision, Review Office denied the union representative's appeal. Review Office believed that the claimant was not entitled to benefits as there had been no evidence to indicate that an accident or a hazard of the employment contributed to the cause of his left foot "giving way". Review Office found no clinical findings in the claimant's left foot that either required medical treatment or would have accounted for the loss of earning capacity to September 7, 1997. Review Office was of the opinion that there was evidence to suggest that the claimant's difficulties resulted from something other than his job activities.

On April 19, 2000, a union representative appealed the Review Office's decision and an oral hearing was requested.

On July 18, 2000, an oral hearing took place at the Appeal Commission. Following the hearing and discussion of the case, the Appeal Panel requested that an opinion be obtained from its medical advisor with respect to the following:

• describe the types of metabolic problems that could create a stress or fatigue fracture in a healthy individual and to provide a layman's interpretation of the x-ray findings of the left foot dated September 8 and 29, 1997.

On August 9, 2000, all interested parties were provided with copies of the medical advisor's memorandum dated August 8, 2000 and were asked to provide comment.

The claimant called the Appeal Commission on August 22, 2000, and requested that the Appeal Panel postpone its meeting as he was looking for someone else to handle his case rather than his union representative. The claimant's request was granted by the Panel. On November 14, 2000, the claimant submitted his final submission to the Panel dated October 30, 2000. On December 7, 2000, the Panel met to render its final decision on the issue under appeal.

Reasons

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

(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.”

Shortly following his reporting of the accident, the claimant had x-rays taken of his left foot. The x-ray report of September 8^th, 1997 stated: “There are fractures identified involving the proximal shafts of the second, third and fourth metatarsals in near anatomic position and alignment. The margins are smooth suggesting subacute time course.” We note that the claimant has a varus foot and that he recently fractured the fifth metatarsal of his left foot on March 12^th, 2000. According to his treating orthopaedic specialist, the claimant’s…“varus type foot …I suspect is putting undue stress to the forefoot which caused the secondary fracture of the 5^th metatarsal secondary to stress.”

We find the positive evidence of the claimant’s fracturing of his second, third and fourth metatarsals to be entirely consistent with the mechanism of injury. In this regard, we considered the opinion of the orthopaedic consultant to Review Office to be rather insightful. He was asked to comment on whether the mechanism of injury was consistent with the diagnosis. He replied in part as follows: “Most unusual to develop stress or fatigue fractures in 3 metatarsals in a healthy patient but it can happen.”

The preponderance of evidence confirms to us on a balance of probabilities that the fractures to the claimant’s second, third and fourth left foot metatarsals arose out of and in the course of his employment. Accordingly, we find the claim with respect to the left foot to be acceptable and the claimant’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
H. Middlestead, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 2nd day of January, 2001