Decision #154/04 - Type: Workers Compensation

Preamble

A non-oral file review was held on October 4, 2004, at the request of the employer's representative.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In March 2002, the claimant filed a claim with the Workers Compensation Board (WCB) for soreness and swelling in both feet which he related to the nature of his work activities as a diesel mechanic that involved excessive standing and walking on a shop floor. Medical information received from the attending physician dated March 26, 2002 reported that the claimant had falling arches and the diagnosis rendered was bilateral plantar fasciitis.

On April 8, 2002, the employer's representative questioned the validity of the claim based on the premise that no other similar claims had been filed from other mechanics.

The file contains several WCB memos documenting telephone conversations that took place between the claimant/employer with regard to the claimant's work history, job duties, medical treatment, etc. In brief, the claimant had been with his employer for approximately one year when he started to develop bilateral foot problems over a three month period. The claimant estimated that he would walk about a mile per day around the garage and the remainder of his time would be standing on cement floors. There had been no changes to the claimant's job duties, work load or amount of walking or standing. The claimant denied any prior foot difficulties or injuries.

On May 20, 2002, a WCB medical advisor reviewed the file information at the request of primary adjudication. The medical advisor stated, in part, "…claimant has fallen arches - pes planas - flat feet. If so - congenital condition & pre-existent would not be related to work activity."

In a decision dated June 6, 2002, primary adjudication outlined its position that it was unable to establish that the claimant's bilateral plantar fasciitis was due to an accident arising out of and in the course of his employment.

On November 19, 2002, the claimant's union representative provided the WCB with a report prepared by an occupational health physician dated October 22, 2002. In this report, the physician outlined his opinion that the claimant's episode of plantar fasciitis was related to his work activities.

On November 25, 2002, primary adjudication reported that the new medical information did not alter the original opinion provided by the WCB medical advisor of May 20, 2002 and that the previous decision to deny the claim would stand. This decision was further confirmed by Review Office on April 11, 2003.

On May 23, 2003, primary adjudication granted the union representative's request to convene a Medical Review Panel (MRP) based on Section 67(4) of The Workers Compensation Act (the Act). An MRP was carried out on November 28, 2003 and a copy of the MRP's final report of December 18, 2003 was forwarded to all interested parties.

On June 4, 2004, Review Office made the determination that the worker's foot condition was related to his employment activities based on the MRP's findings. On July 8, 2004, the employer's representative appealed Review Office's decision and a non-oral file review was arranged.

On October 4, 2004, the Panel reviewed all the file information which included a submission from the employer's representative dated September 23, 2004 and a submission from the union representative dated September 24, 2004.

Reasons

Section 4(1) of 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
  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."

As the background notes indicate, the union representative, acting on behalf of the claimant, requested the convening of an MRP pursuant to section 67(4) of the Act. The MRP met and examined the claimant on November 28, 2003. In reaching our decision, we attached considerable weight to the following findings of the MRP:

“The Panel does not feel that he [the claimant] meets the criteria for plantar fasciitis. His Pain is most prominent during the day after being on his feet, rather than in the morning on waking which would be more characteristic for plantar fasciitis. Also his maximal point of tenderness is in the mid aspect of the plantar part of the foot, rather than more towards the heel. Therefore the Panel feels it would be more accurate to characterize his bilateral foot pain in March 2002 as being a non specific strain of the soft tissues on the plantar aspect of the foot.”

“The Panel does feel his [the claimant’s] foot condition of March 2002 was caused by his work activities. He is on his feet all day. He has a tendency to a mild pes planus and has to wear heavy unforgiving work boots. The Panel feels this is sufficient to cause the pain and discomfort that he is describing.”

In adopting the findings of the MRP, we therefore conclude that the claimant’s bilateral foot difficulties arose out of and in the course of his employment. The definition of accident under the Act has been satisfied. Accordingly, the claim is therefore acceptable. As such, the employer’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 15th day of November, 2004

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