Decision #54/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 26, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being May 8, 2003.

Issue

Whether or not the claim for bilateral achilles tendonitis is acceptable.

Decision

That the claim for bilateral achilles tendonitis is not acceptable.

Decision: Unanimous

Background

In late October 2001, the claimant contacted the call center at the Workers Compensation Board (WCB) to report bilateral wrist and ankle difficulties that she related to her employment activities as a labourer on October 3, 2001. The claimant described her difficulties as follows:
"I work on the assembly line. My wrists are sore from the repetitive movement on the assembly line. My ankles are sore from constantly walking on the cement floors.

I do two different jobs there. One week assembly line, next week walking."
The Employer's Report of Injury for this claim stated the following:
"Upon investigation of the information sent by WCB, it is determined that a 'Notice of Injury' form was not given to a supervisor. The injury date stated was Oct. 3/01. [claimant's name] was not (sic) work on that date. There is no evidence that a (sic) injury occurred at [employer's name]."
Medical reports confirmed that the claimant was diagnosed with bilateral carpal tunnel syndrome and bilateral achilles tendonitis.

In order to adjudicate the claim, primary adjudication spoke with the claimant and representatives of the accident employer to gather additional information concerning the claimant's employment history and job duties.

On November 6, 2001, the claimant advised a WCB adjudicator that her feet began to bother her around the middle of September 2001. She had been working on the inspection process which she said involved a lot more walking than when working on the line. At home one evening the claimant was rubbing her feet and she noticed lumps at the tendons in the back of her heels in the achilles tendon area. The claimant denied any specific accident to account for her difficulties but felt that walking and standing in one position at work caused her condition.

Following consultation with a WCB medical advisor on November 20, 2001, primary adjudication advised the claimant that the WCB was accepting responsibility for her bilateral wrist condition but not for her bilateral ankle condition. Primary adjudication referred to the opinion expressed by a WCB medical advisor that her achilles tendonitis condition was not a result of employment activities but was likely a chronic problem, not related to standing and/or walking on concrete floors.

In March 2002, a union representative appealed the above decision and she submitted new medical information dated February 28, 2002. In brief, the physician stated that long standing and walking on hard surfaces could be the cause of the claimant's bilateral ankle condition. Non-occupational risk factors included improper footwear, obesity, systemic influences and running. Primary adjudication had asked a WCB medical advisor to consider the new information and to determine whether it changed his previous opinion on the case. In a response dated May 22, 2002, the WCB medical advisor provided the following comments:
"I have reviewed the medical on file. The letter from Dr. [name] does not change my opinion.

I have also reviewed the appeal paperwork. The lumps on the backs of her ankles are an indication this is a chronic condition. As stated in the union documentation and Dr. [name] letter, the primary risk factors are weight, poor footwear and high impact exercise, i.e. jogging, racquet ball and tennis, these do not including walking."
Based on the medical advisor's opinion, primary adjudication advised the claimant on May 21, 2002, that no change would be made to the original decision that her bilateral ankle difficulties were not attributed to her work activities. The appeal was then forwarded to Review Office for consideration.

On August 16, 2002, Review Office confirmed that the claimant's work duties did not cause her bilateral achilles tendonitis condition based on the following evidence:
  • when the claimant was assessed primarily for her carpal tunnel condition by a WCB physician on July 26, 2002, the medical advisor pointed out that the claimant had gained between 60 and 70 pounds since the time of her CTS surgery and that the claimant's bilateral achilles condition had progressed insidiously over time. The claimant found pain when she walked or stood for extended periods of time and she had been fitted with orthotics in an attempt to alleviate symptoms.

  • the first WCB physician who had assessed the claim indicated that he had researched achilles tendonitis and the medical literature did not indicate walking as a cause for the condition.

  • the employer's representative pointed out that it was obvious that the claimant could be walking and standing in all facets of her life and not simply at work.

  • the union representative brought forth the issue of walking on concrete. Review Office placed more weight to the evidence on file which included the claimant advising that she had found lumps on the tendon and her weight situation as being prime factors in the evolution of the bilateral achilles tendonitis situation.
On September 10, 2002, the union representative disagreed with Review Office's decision and submitted an appeal application to the Appeal Commission. On November 26, 2002, an oral hearing was held at the Appeal Commission.

Following the hearing and discussion of the case, the Panel requested additional information from the claimant's treating physician and from her employer before deciding the issue under appeal. On February 12, 2003, all interested parties were provide with the information that was received by the Panel and were asked to provide comment.

On March 3, 2003, the Panel met to discuss the case and considered a submission by the employer's representative dated February 24, 2003. Following discussion of the case, the Panel requested specific information from the claimant. On March 18, 2003, the employer's advocate was provided with the information that was submitted by the claimant and her union representative and was asked to provide comment. On May 8, 2003, the Panel met again to discuss the case and took into consideration a submission by the employer's advocate dated April 1, 2003.

Reasons

The claimant has appealed the Workers Compensation Board's ("WCB") decision not to pay compensation for her claim for benefits, relating to a diagnosis of bilateral achilles tendonitis.

Section 4(1) of The Worker's Compensation Act (the Act) provides for 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 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. An "accident" is defined in the Act as:

"a chance event occasioned by a physical or natural cause; and includes
  1. a willful 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."

In reaching its decision that the claim is not acceptable, the Panel has determined that the claimant has not sustained a personal injury by an accident which arose out of her employment.

The evidence brought forward at the hearing of this matter, together with the additional information supplied by both parties subsequent to the hearing, does not, on a balance of probabilities, establish a causal relationship between the claimant's diagnosis of bilateral achilles tendonitis and her employment. The Panel has determined, therefore, that the claimant's personal injury did not arise out of her employment.

In particular, the Panel noted that the medical information made available by the parties and by the medical advisor to the WCB disclosed that a number of risk factors can be causally related to a diagnosis of bilateral achilles tendonitis. At the hearing of this matter the claimant's representative admitted that the claimant does appear to have some or at least one, non-occupational risk factor, although she submitted that this was not the sole cause of the claimant's condition.

The position taken by the claimant at the hearing was that there was no specific date at which her condition occurred but rather that it developed over a period of time based on the cumulative effects of the claimant's work demands. The Panel finds that the evidence does not support this position.

In reviewing the claimant's employment record for the period of time claimed, the Panel found that the claimant had, in fact, a limited occupational exposure to the potential risk factors which can be causally related to bilateral achilles tendonitis. Indeed, the evidence disclosed that the claimant had several prolonged absences during her total period of employment, including a period of absence during which the claimant says she was mostly off her feet, in bed, for unrelated reasons, just prior to returning to work and making the claim which is the subject of this appeal.

The Panel finds on a balance of probabilities that the claimant's job duties did not cause the claimant's bilateral achilles tendonitis. Put another way, because the condition did not arise out of the claimant's employment, the claimant does not meet the definition of an "accident" as defined by The Worker's Compensation Act for which the claimant may be paid compensation. The appeal is, therefore, denied.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of May, 2003

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