Decision #26/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 24, 2003, at the claimant's request. The Panel discussed this appeal on February 24, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In December 2001, the claimant contacted the call center at the Workers Compensation Board (WCB) to report an injury to both of his feet during the course of his employment as a drill press operator on November 23, 2001. The claimant described his injury as follows:
"I am not sure how this happened. I came into work Nov. 23/01 and then my feet started to hurt very badly. I was off for 7 months and I had returned to work and I had gotten a new pair of boots. There is a mat on the floor in front of my work station that I stand on all day every day. There is nothing else that could have caused this. My feet only hurt when I am at work, this happens after I have been at work for a while. (during the day)."
The Employer's Accident Report for this claim indicated the following: "Feet got sore while working on his regular responsibilities. (Originally I did not know that this was a WCB claim.) Therefore nothing got filed until I got this request."

A Doctor's First Report dated December 10, 2001 diagnosed the claimant with plantar fasciitis. An x-ray of both feet dated December 10, 2001, showed no soft tissue, bony or articular abnormality in either foot. The heels appeared unremarkable. In a progress report dated December 19, 2001, the physician reported that the claimant still complained of sore feet on prolonged standing. There were no objective findings recorded. The physician felt that the claimant was capable of performing regular duties.

In order to adjudicate the claim, primary adjudication contacted both the claimant and his employer to obtain additional information concerning the claimant's work duties and reporting of the accident.

On January 27, 2002, the claimant was advised by primary adjudication that this claim for compensation was denied based on Section 4(1) and 1(1) of The Workers Compensation Act (the Act). The adjudicator noted that complaints of generalized foot pain of which the claimant complained were frequent and not normally related to a specific cause, and the etiology of plantar fasciitis was multifactorial. The evidence did not support that the claimant had been injured by accident in the sense required under the Act.

On February 20, 2002, primary adjudication advised the claimant that additional medical information was received at the WCB which indicated that he saw two physicians on February 1, 2002 and February 4, 2002 respectively. Both physicians offered a diagnosis of plantar fasciitis. Based on these reports and all of the current information on file, the adjudicator confirmed that he was unable to establish a relationship between the claimant's bilateral foot difficulties and his work activities.

In July 2002, the claimant appealed the WCB's decision to deny his claim and submitted a medical report from his attending physician dated July 8, 2002 for consideration.

Prior to considering the claimant's appeal, Review Office spoke with the claimant on August 28 and 29, 2002 and also sought the advice of a WCB orthopaedic consultant on August 30, 2002. It was the consultant's opinion that the claimant may have plantar fasciitis and that there was no causal relationship between the diagnosis and the claimant's work activities of standing and walking on concrete. The consultant indicated that because the claimant was symptomatic at work, it did not mean it was causal for the condition.

In a September 6, 2002 decision, Review Office determined that the claim was not acceptable. It noted that while the claimant was working and performing a function for his employer at the time that he first noted symptoms involving his heels on November 23, 2001, he did not sustain a personal injury by an accident.

Review Office noted that the claimant repeatedly advised the WCB that before the onset of his symptoms he purchased and wore new work boots and outside of work he wore runners that were beginning to wear. Review Office noted that the etiology of plantar fasciitis was multifactorial and in most cases, work was not the cause or the link to the condition.

Review Office also commented that the claimant was off work on another claim with the current employer and had returned to work on October 2, 2001. The claimant did not return to working at 8 hours of standing as he had led Review Office to believe. Having reviewed a previous compensation claim, Review Office pointed out that the claimant had returned to work on a graduated basis at reduced hours and only shortly prior to November 23, 2001, the claimant had begun working full hours. This encompassed breaks during the day, moving to various machines and use of a floor mat. On October 30, 2002, the claimant disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker who has been diagnosed with plantar fasciitis in both of his feet, which he attributed to his work. His claim for compensation was not accepted. On reconsideration, this decision was upheld by the Review Office. He then appealed to this Commission.

The issue before the Appeal Panel was whether or not the claim was acceptable.

For his appeal to be successful, the Panel would have to determine that the claimant's injuries are causally related to his employment. We were not able to come to that determination.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding an oral hearing, at which we heard testimony from the claimant.

The payment of compensation benefits is governed by The Workers Compensation Act, section 4(1) of which reads:
"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."
Key to our consideration are the words "arising out of and in the course of the employment." For the claim to be acceptable, we would have to find that the claimant's foot problems arose out of and in the course of his employment.

Our decision was influenced by the following findings:
  • The claimant stated that, midway through his shift on November 23, 2001, his feet became quite sore.

  • On November 30, a doctor diagnosed him as having plantar fasciitis.

  • On December 16, this doctor queried why there had been no recovery, but felt the claimant could return to regular duties.

  • On February 1, 2002, a second doctor at the same clinic, made the same diagnosis; and stated that the claimant was capable of performing alternate/modified duties, with limited restrictions on prolonged walking and standing.

  • On February 4, 2002, a third doctor in that clinic came to the same conclusion in respect of diagnosis and ability to do alternate duties.

  • On February 19, this third doctor expressed the opinion that the problem was caused by "prolonged standing in one place on a hard floor operating the drill press." He restated this opinion in another letter, dated July 8, 2002.

  • In a memo dated August 30, 2002, a board orthopaedic consultant agreed that the diagnosis may well be plantar fasciitis, but disagreed that there was a causal relationship to the claimant's employment. He stated that "just because he is symptomatic at work does not mean it is causal for the condition."
In testimony before us, representatives of the employer described the duties of a drill press operator, noting that, far from standing in one spot, there is a lot of movement, including periods when the drill is on "auto feed" and the operator can rest or engage in other physical activity. It was stated that the claimant would lift weights at this time. The claimant did not disagree with this testimony.

Evidence was also presented as to the number of hours the claimant had been working prior to the date of the claimed injury. The claimant had been off work for a number of months due to a prior compensable injury, returning to work eight weeks prior to the event in this claim. Over that period, his hours of work gradually increased from three days a week at about four hours per day, up to a full week with three full shifts and two half shifts. In the four days immediately prior to the claimed accident, he did not work at all.

Evidence was also presented that showed that only about half of his time during that period was spent working at the drill press, the rest being at a number of different tasks.

We note, from medical literature, that plantar fasciitis is rarely caused by a spontaneous event. While it may, on those rare occasions, be caused by trauma, the claimant denied any traumatic event.

While we do not disagree that the claimant did have problems with his feet that prevented his working at his job, and that these problems may well have been due to plantar fasciitis, we are unable to find sufficient evidence that his condition arose out of and in the course of his employment. Even if one were to accept that prolonged standing in one place might be causative, the evidence before us did not support that the claimant had been so engaged. His hours of work, in the prior eight weeks, had not been particularly prolonged. On only five days had he worked a full, eight-hour shift. And his job duties had involved significant variety and movement.

We conclude that - on a balance of probabilities - his problems with his feet were not causally related to his work.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of March, 2003

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