The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 18, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 18, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

During the course of his employment as a hog loader on October 4, 2000, the claimant reported injuries to both ankles and feet. On his application for benefits, the claimant described the workplace accident as follows:

"Worked on loading hogs into trailor - pushing 15 hogs (approx. weight each hog 300 lbs.) at one time on concrete floor. The pain progressed til couldn't work."

In correspondence dated February 13, 2001, the employer took exception to the claim being filed as a workplace injury. The employer noted that the claimant had filed a claim with an insurance carrier for foot and ankle injuries and that it was not until the 14th week of his 15 weeks of benefit coverage that the claimant decided to file a WCB claim. The decision to file a WCB claim had been initiated after the claimant was reassessed and told that he would not be allowed to return to work until he was able to wear medical insoles for his feet.

The employer supplied a copy of the claimant's short term disability form that was submitted to the insurance carrier. The form indicated that both of the claimant's ankles were sore following an incident that occurred at Wal-mart when a Wal-mart employee hit the claimant's left heel with a heavy object.

On a Doctor's First Report dated October 6, 2000, the claimant's description of injury was repetitive walking on hard surfaces at work causing heel and ankle pain. The diagnosis rendered was Achilles tendonitis and bursitis of the calcaneus. The claimant was considered disabled from working.

When speaking with the claimant on February 14, 2001, a Workers Compensation Board (WCB) adjudicator documented the following information:

• the claimant said he had plantar fascitis caused by stress to the bottom of his feet.
• when asked about the Wal-mart incident, the claimant said he was hit in the back of his heel. He indicated that after being hit he had to compensate for the pain in his ankle by walking differently which in turn caused pain to his feet.
• the claimant related his foot pain to his work duties. The claimant indicated that he was pushing 10 to 15 hogs at a time and stood on a concrete floor for 8 hours per day. The pain progressively became worse over a month and a half. The claimant stated that October 4, 2000 was not the date of accident, but rather the first day that he was unable to work due to his injury.
• when asked about the delay in reporting the work related problem to the employer, the claimant advised that he had in fact reported it to the company nurse in October and that she convinced him to file for short term disability. The claimant advised that he was prompted to file a WCB claim because he was not sure how long he would be off work and he didn't think he should ever have been on short term disability.

On February 15, 2001, a WCB adjudicator spoke with the company nurse and the following information was obtained:

• In October 2000 the claimant advised that he hurt his heel at Wal-mart and that his ankle was sore and that working caused more soreness. The claimant was advised to file a claim with the insurance carrier as the injury occurred at Wal-mart. In January 2001 the claimant said that if he had known the insurance carrier was only going to pay 15 weeks of benefits then he would have filed for WCB earlier.
• the claimant started working with the employer on March 21, 2000 loading hogs onto trailers. Rubber boots were supplied as required.

A WCB adjudicator contacted the claimant again on February 16, 2001 and the following information was documented:

• His left achilles tendon started to bother him in the beginning of September 2000 while loading hogs. No one was aware of this at work. The claimant said that he started to favor his left foot and was using his right foot more to compensate. One week later his right achilles tendon and bottom of right foot started to bother him while pushing hogs.
• The claimant was asked whether he had any prior problems with his feet or ankles before September 2000 and he answered no.

Additional information was obtained from the company nurse on February 28, 2001 dealing with the claimant's job duties. The nurse indicated that there were 5 people who work together in the hog loading area. Hogs are hung on overhead rails which are pushed by workers. The workers can push any number of hogs together, normally around 6-8 together. Hogs weigh approximately 300 pounds each. Two workers push hogs from the cooler to the loading dock. Two workers push hogs from the loading dock to the trailer. One worker would remove kidneys with a knife in the loading dock area. Workers would rotate and do the kidney job. Two or three times per week a hog would fall off the rail and 2 or 3 workers would pick it up and re-hang it. Eighteen hundred hogs per shift are pushed. The nurse indicated that no other co-workers have mentioned foot difficulties.

A report received from the treating physician dated January 18, 2001 noted that the claimant described his pain around the heel area and on the sides of the calcaneus. This was bilateral. Clinical assessment noted that the claimant had high arches and was obese. He concluded that the claimant had heel pain, most likely related to continuous trauma to the heels' fat pads with continuous walking on a hard surface.

On March 11, 2001, the case was reviewed by a WCB medical advisor at the request of primary adjudication. The medical advisor commented as follows:

"Determining causation and work-relatedness is difficult. He is heavy, has high arches and has a prior injury relating to a Wal-mart cart. His work does require a lot of walking apparently but there is no stress with pushing hogs as they apparently roll easily. I could not say his work caused his problem. It would, however aggravate a prior condition. Given the evidence that his co-workers do not have any reported problems, the contribution from the work force would be slight. Note Dr. [attending physician's] report of October 11/2000 - suggests not a work related injury."

In a March 6, 2001 decision, Rehabilitation and Compensation Services could not substantiate that the claimant's bilateral ankle and feet difficulties arose "out of and in the course of" his employment. It was noted that the claimant had performed the same duties for approximately seven months prior to having any difficulties with his ankles or feet. The claim for wage loss benefits and medical aid treatment was denied. On March 21, 2001, the claimant's union representative appealed the decision to Review Office.

Prior to considering the union representative's appeal, Review Office sought the opinion of a WCB orthopaedic consultant on April 5, 2001 with respect to whether or not he felt that the claimant's duties were the cause of his heel/achilles problems.

In a decision dated April 12, 2001, Review Office noted the WCB orthopaedic consultant's opinion that plantar fasciitis was very common in the community and that it was prevalent in all walks of life, including sedentary workers who were basically not on their feet for extended periods during the course of their day. The etiology of plantar fasciitis could be a very confusing matter as often attempts at defining causation were purely speculative. Review Office noted that the claimant had certain characteristics that worked against him, i.e. his weight and high arches, and that the claimant was certainly on his feet outside of the workforce. Review Office was unable to conclude that the claimant's bilateral foot condition was directly related to his duties on the hog line and therefore confirmed that the claim was not acceptable.

In April 2001, the claimant contacted Review Office stating that he first developed bilateral achilles tendonitis from walking on concrete floors at work and subsequently developed bilateral plantar fasciitis from the achilles problem. Review Office in turn referred the case back to the WCB's orthopaedic consultant to comment on the etiology of achilles tendonitis and its relationship, if any, to the development of plantar fasciitis.

On April 26, 2001, the WCB orthopedic consultant stated, in part, that achilles tendonitis and plantar fasciitis were two separate problems occurring in two different areas. The consultant was of the view that whatever the diagnosis, both plantar fasciitis and achilles tendonitis had not arisen as a result of the claimant's work activity. In a letter dated May 2, 2001, Review Office advised the claimant that no change would be made to the decision of April 18, 2001 based on the orthopaedic consultant's opinion. On May 14, 2001, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

Chairperson MacNeil and Commissioner Day:

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 keeping 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. An accident is defined as, “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.”

As the background notes indicate, the claimant commenced employment with the accident employer on March 21^st, 2000 working as a hog loader. The claimant’s job duties involved pushing hogs from a cooler to a railing and then onto a trailer. A little over six months after starting this job, the claimant discontinued working because both of his ankles had become painfully sore. The claimant completed and filed a WCB claim form citing that his bilateral foot and ankle problems were related to his work as a hog loader.

The treating physician referred the claimant to an orthopaedic surgeon for examination. He clinically noted that the claimant had high arches and was somewhat obese. In his opinion, the claimant’s heel pain was “most likely related to continuous trauma to the heel fat pad with continuous walking on a hard surface.” The claimant was given a prescription for heel cups to cushion his heels as well as a prescription for a custom-made orthosis.

At the hearing, the employer’s advocate provided a detailed description of the claimant’s job duties.

“Hogs hang from overhead rails and are pushed along by the workers. The pushing is done at shoulder height with elbows bent, and while the hogs are heavy, 300 pounds, they move quite easy as they are on rollers attached to the rail. Two workers push the hogs from the cooler to the loading dock. Two workers push the hogs from the loading dock to the trailer. And one worker removes kidneys with a knife in the loading dock area. All the workers, the five workers, rotate positions so each would be equally responsible for the kidney removal job.”

The particulars of these job duties were later challenged and contradicted by the claimant.

Review Office, in arriving at its decision, relied heavily on the opinion provided by the WCB’s orthopaedic consultant. In a memorandum dated April 5^th, 2001 he recorded the following comments:

“According to the file, the claimant has been treated for plantar fasciitis and not bilateral calcaneal bursitis or achilles tendonitis. This is an extremely common problem in the community at large whether or not the claimant is working, participates in athletics or even has a sedentary standing or walking occupation. Obesity, cavus type feet (high arch) which the claimant appears to have are also contributing factors. Footwear can also be a contributing factor whether or not an individual wears rubber boots, regular footwear or even athletic type shoes. In my opinion, it has not been established the claimant’s work activity as a hog loader has been causal for the onset of these symptoms.”

We note that several of the foregoing contributing factors to the development of plantar fasciitis can be attributed to the claimant’s particular situation, such as high arches, obesity and improper footwear.

We attached considerable weight to the claimant’s oral evidence. It was not only informative, but also very forthright and candid. The following excerpt from the claimant’s testimony greatly expands upon the nature and extent of his job duties:

Q. And he indicates that he had given you a prescription for heel cups.

A. Orthotics, special orthotics.

Q. Okay.

A. That was made. Yes, I do wear them at work now. I have to wear those in my boots. I cannot wear rubber boots at work because they do not, they do not operate the same in rubber boots as they would in proper workwear.

Q. What type of footwear were you wearing when your problems began at work?

A. I was wearing rubber boots.

Q. And you no longer wear rubber boots?

A. No, I do not.

Q. What do you wear?

A. I wear safety steel-toe boots, which I bought from Canadian Footwear. .

Q. So if I understand you right, the orthotic supports or whatever are not compatible with the rubber boot?

A. No, because they say it stretches out too much in the rubber boots and it doesn’t operate the same. Like, when it’s in leather boots, they stay there. But when in rubbers, they just stretch and it doesn’t give the same support it would - -

Q. Now could you also describe, in as much detail as you can, your work tasks, you know, the duties?

A. Okay. There’s usually - - there’s five guys on in a day and four guys on in the evening shift. The one guy, the extra guy in the daytime usually is the lead hand and he does all the paperwork, et cetera, et cetera. The four, the other four guys, one works out of the cooler. He pushes the hogs up to the guy cutting off the kidneys. And there’s one guy on the stand which cuts off the kidneys. And then there’s two in the trailer, one holding the legs and one pushing in and then they alternate. They’re supposed to all alternate between the four of them, which is supposed to - - one is supposed to switch into the cooler, one is supposed to switch on the stand and the other two are supposed to switch into the trailer. But, unfortunately for myself, they didn’t think I was compatible on a stand operating a knife so they kept me either in the trailer or in the cooler. So I never got to be on the stand at all.

Q. So what you’re saying is that the rotation with respect to the removal of the kidneys was not part of your function?

A. Right. I was never on the stand. I was never - - they didn’t put me on the stand. I was either in the cooler or in the trailer, which is constantly walking and standing.

Q. Then can you go into more detail what you - - you know, like how many hogs you had to move or what you do with them?

A. Well, you usually push - - you have to be quick, otherwise people fall behind. You have to push 10 to 15 hogs out at one time. If you start pushing - -

Q. When you say “at one time”, you mean in one push?

A. Yes.

Q. So there’s two guys pushing 10 or 15 hogs?

A. No, there’s one guy pushing out of the cooler 10 to 15 hogs and in the trailer it’s - -

Q. These are on these overhead rails?

A. Right. And they usually some - - the majority of time when they’re frozen, which majority of time they are, they’re frozen together and the rollers stick. They do not, they do not roll as easy as people think they do.

Q. Would you give us an estimate as to what a 10 or 15 string of hogs would weigh in terms of - -

A. Well, you figure 250 to 300 pounds per hog, times - - it would be about - - you know, that’s a tremendous amount of weight I figure, 300 times 10 is 3000 pounds you’re moving on a rail.

Q. And how do you posture yourself when you’re - -

A. You’re leaning forward. You’re always leaning forward and you’re using your feet and your legs majority. You’re just using your arms to stable the hogs and push forward.

Q. Is it necessary to go up an incline?

A. There is the odd incline that you have to push up a little bit and then it goes straight. There’s no, there’s no decline to it. There’s always, there’s always a slight incline. So you’re always pushing up. Like some guys, they cannot push 10 or 15 hogs. They got to push six or eight, maybe less. There’s some guys that can only push four or five. And when they do that, everything falls behind. The kill floor falls behind and then also the people that are loading fall behind.

Q. Okay. So you push the number of hogs. How frequently would you do that, I mean, say in an hour?

A. Oh you would - - every - - it takes about five, six minutes to get there and back. So every five, six minutes you’re pushing 10, 15 hogs.

Q. So how long a distance would it be from where you initiate contact with these 10 or 15 hogs to transport to where they’re supposed to go?

A. About 30 to 40 yards.

Q. And then you would walk back to the area again?

A. Right. You walk back into the cooler, you grab more hogs, and then you push them back up. And you can - - it’s just a repetitive motion. You’re always constantly walking and you’re always constantly on your feet, just pushing, pushing, pushing. So then after the first trailer, like I’d be in the cooler, after the first trailer, cooler, I’d be in the trailer, the second trailer. And then on the third trailer, I’d be back in the cooler instead of going on the stand. So instead of getting a break in between and going on the stand and cutting off the kidneys and taking a break off my feet, I’d be back in the cooler, pushing. Or I’d be in the trailer pushing. I wouldn’t - - it would just be a continuous repetitive pushing. I wouldn’t have no break like the other three would. Like, the other three would rotate and be on the stand one out of every two, three trailers.

It should be noted that the medical advisors and consultants to the WCB did not have the benefit of having the worker’s complete job description at the time when they provided their opinions. We consider this to be rather important inasmuch as their opinions may very well have been different. For instance, we refer to the WCB medical advisor’s opinion, which is contained in a March 1^st, 2001 memorandum.

“Determining causation and work-relatedness is difficult. He is heavy, has high arches and has a prior injury relating to a Walmart cart. His work does require a lot of walking apparently, but there is no stress with pushing hogs as they apparently roll easily. I could not say his work ‘caused’ his problem. It could, however, aggravate a prior condition.” (Emphasis ours)

We find based on the preponderance of evidence that the claimant did sustain an accident, which arose out of and in the course of his employment. The claimant’s work duties in conjunction with his high arches; his excess body weight and his utilization of improper footwear were, on a balance of probabilities, all significant factors in the development of his bilateral foot difficulties. We note that the claimant has returned to his full time pre-accident duties and that his feet are no longer causing him any problems.

Q. You’re back to work now?

A. Yes.

Q. Doing the same job?

A. Yes.

Q. How are your feet?

A. They’re good. I never seem to have a problem. As soon as I got the proper footwear and the orthotics inside the footwear, I haven’t seemed to have a problem.

We find the claim to be acceptable and hereby allow the claimant’s appeal.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller
R. W. MacNeil,

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

Signed at Winnipeg this 26th day of November, 2001

Commissioner's Dissent

Dissent of Commissioner Finkel:

The claimant is seeking coverage under the Workers Compensation Act (the Act) for bilateral foot problems that took him off his job in a production facility in October 2000. The first two levels of adjudication of this claim – the WCB adjudicator and the WCB Review Office – both determined that the worker’s claim was not acceptable, and that there was no workplace “accident” as defined under Section 1(1) and 4(1) of the Act. The claimant is appealing those decisions to the Appeal Commission.

After reviewing all the information in the file and the evidence and submissions during the hearing, I find that the evidence supports a conclusion, on a balance of probabilities, that there was no workplace accident leading to the claimant’s bilateral foot problems.

I place particular weight on the following evidence, in support of my conclusions:

• official diagnosis at his first visit with his doctor, but the condition was later described (January 2001) by a sports medicine physician as bilateral achilles tendonitis and plantar fasciitis.
• The claimant’s job duties did not change during this period. There was also no specific workplace incident reported by the claimant in respect of his injuries.
• The claimant has had a number of prior claims with the Workers Compensation Board and was familiar with the reporting procedures for workplace accidents.
• The claimant first reported his injuries to the company nurse in October 2000, because he needed time off work for his feet. At that time, he brought up the incident at Wal-Mart and decided to apply for short term disability. The company nurse confirms the discussion regarding the store incident, and notes that there was no discussion of a work-related cause at that time. The claimant’s insurance application, dated October 13, 2000 states “personal injury claim against Wal-Mart. Employee hit left heel with heavy object, partial cause of condition. Both heels are sore.” His doctor completed the medical portion of the application on October 11, 2000, and attributed the injuries to a non-work-related illness or injury. The claimant was accepted for short term disability. The attending physician later provided a statement of continuing disability on November 29, 2000 to extend short term disability benefits. The attending physician did not submit a medical report to the WCB at that time.
• The worker did not file a Worker’s Report of Injury until January 31, 2001, after an examination by an orthopaedic specialist where a work-related link (walking on hard surfaces) was first discussed. I note that the specialist’s report does not make any mention of the Wal-Mart incident. In a memo dated February 15, 2001, the adjudicator notes that the WCB claim was initiated because the short term disability program provided only 15 weeks of benefits.
• The employer’s report was filed February 13, 2001, with an indication that the injury was first reported to them on February 6, 2001. The claimant’s attending physician’s first report was not received by the Board until March 2, 2001, although it references a date of examination of October 6, 2000.

In reviewing this evidence, I find that the non-work related incident at Wal-Mart was instrumental to the claimant developing very significant injuries to his feet and ankles, both from the original trauma and from his need to change his gait to compensate for the original trauma. These conditions were under medical treatment, and continued to worsen in the months following. As for the potential aggravation from work activities, I note that the claimant was clearly focused on the Wal-Mart incident when he sought leave from work on October 4, 2000, and wage replacement benefits. While he was aware of WCB benefits, he made an application for short term disability benefits, and his attending physician provided supporting documentation which referred to a non-work-related source.

Medical opinions on the file, in particular that of the WCB’s orthopaedic consultant, note that it is difficult at the best of times to relate achilles tendonitis and plantar fasciitis to activities at the workplace, and can in general arise in the general population whether or not the person is working, participates in athletics, or has job duties involving standing or walking. His memo of April 26, 2001 also notes that achilles tendonitis can arise on an acute traumatic basis.

In this instance, however, there is a very clear external incident, which I find, on a balance of probabilities, is the cause of the claimant’s medical difficulties. As this incident occurred outside the workplace and was the primary source of the claimant’s difficulties when he left work in October 2000, I find that the claimant has not suffered an accident arising out of and in the course of employment, as required under the Act. Accordingly, I would deny the claimant’s appeal.

A. Finkel, Commissioner