Decision #53/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 9, 2005, at the request of a worker advisor acting on behalf of the worker. The Panel discussed this appeal on several occasions, the last one being March 24, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On July 7, 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to report a left foot injury that occurred at work on June 19, 2003. On this date, the worker stated "As I was walking I twisted my left foot and fractured my left foot." The worker stated that she reported the injury to her employer on July 7, 2003 as she was not aware that the injury was that bad. This was due to the fact that her doctor told her she had inflamed tendons and she was instructed to wrap her foot.

On July 16, 2003, the accident employer's human resources officer advised the WCB that the worker had replaced her boots and that her foot had been bothering her. The worker recalled telling some of her co-workers this but did not report it to her supervisor as she thought the pain would just go away. After seeking medical treatment, the worker was advised by her doctor that she had inflamed tendons. The worker did not complete a green card but did speak to the human resources manager after the fact. Based on these factors, the employer requested careful consideration of the claim due to the worker's delay in reporting the accident.

When speaking with a WCB adjudicator on July 23, 2003, the worker stated that she had a bunion on her right foot and that she had to change from size 9 work boots to size 10 to accommodate the non-compensable injury. She had been wearing size 10 boots for about one month prior to the injury. On the date of accident, the worker stated that there must have been something on the floor that her boot got caught onto and she stumbled over it. The worker noted that there was enough room in her boot for her foot to move a bit and thought her toes got caught and twisted in her boot. The worker first mentioned the injury to a co-worker on June 20, 2003 and they discussed how to treat the injury at home with certain remedies. The worker also said she mentioned her injury to other co-workers as well. She did not fill out a green card because she did not think the injury was serious enough to warrant reporting.

Medical reports revealed that the worker sought medical treatment on June 23, 2003. The worker's description of injury was documented as "strain injury L foot from safety work boots." The diagnosis rendered was "strain injury L foot/residual tendinitis". The worker was not considered disabled as a result of the injury.

On July 7, 2003, x-rays of the worker's left foot revealed a moderate sized plantar calcaneal spur. There was also a little periosteal new bone adjacent to the distal shaft of the second metatarsal and the appearance was consistent with a stress fracture. There was also osteoarthritic change in the first metatarsal phalangeal joint. On July 7, 2003, a second treating physician confirmed the diagnosis of a stress fracture of the second metatarsal.

Further x-rays of the left foot were taken on July 25, 2003. The radiological report stated, "Since the previous study additional new bone has appeared at the stress fracture in the shaft of the second metatarsal. There is otherwise no change."

In a decision dated September 26, 2003, primary adjudication determined that the claim was not acceptable. Primary adjudication commented that the worker's lead hand and other co-workers were contacted and none of them were able to confirm the accident history as described by the worker to the WCB. Based on the worker's four day delay in seeking medical treatment and subsection 4(1) of The Workers Compensation Act (the Act), primary adjudication was unable to establish that an accident occurred at work.

On October 23, 2003, the worker appealed the WCB's decision of September 26, 2003, stating there were several errors with respect to the decision, i.e. misdiagnosis of injury, working while injured; miscommunication between employer/employee/WCB.

On November 18, 2003, Review Office outlined its position that there was insufficient evidence provided to establish a relationship between the left foot stress fracture and an accident arising out of and in the course of the worker's employment. Review Office stated that a stress fracture can occur spontaneously but usually there was a specific accident or incident or there was an underlying cause. In this worker's case, Review Office was of the opinion that the left foot stress fracture may have occurred at work but the worker's choice of improper fitting work boots, her weight and 'moderate sized plantar calcaneal spur' and the 'osteoarthritic change' in her left foot were all underlying causes that would have predisposed her to a stress fracture. In addition, Review Office did not feel that the worker's duties played a role in her injury based on the inconsistencies in describing the occurrence of her injury. On December 3, 2004, a worker advisor appealed Review Office's decision on the worker's behalf and an oral hearing was convened.

Reasons

The eligibility for compensation benefits by federal employees is governed by the Government Employees Compensation Act (GECA) and the Government Employees Compensation Regulations (GECR) which are both administered by agreement in Manitoba by the WCB. In the GECA an accident is defined as “a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

According to Section 4(1) of the GECA, compensation shall be payable to

(a) an employee who

(i) is caused personal injury by an accident arising out of and

in the course of his employment, or

(ii) is disabled by reason of an industrial disease due to the

nature of the employment.

The GECR provide that, “an employee who is disabled by reason of a disease that is not an industrial disease but is due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation in which he is employed at the time of the disease was contracted ...[is] entitled to receive compensation at the same rate as [he/she] would be entitled to receive under the Government Employees Compensation Act if the disease were an industrial disease ...”.

In 1993, the Board of Directors of the WCB instituted policy 44.05.10 in order to clarify and/or expand the definition of accident in the GECA. This particular policy provides:

“The following principles will apply when interpreting GECA. The definition of ‘accident’ in the GECA will be given a broad interpretation. Therefore:

1. The phrases ‘personal injury by an accident’ will be interpreted to

mean ‘personal injury by accident’.

2. The interpretation of ‘accident’ will encompass both accidental cause and accidental result. That is, the injury itself may be considered the ‘accident’.

3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion, will be considered an ‘accident’.”

As the background notes indicate, Review Office considered this case on November 18, 2003 and concluded in part as follows:

“A stress fracture can occur spontaneously, but usually there is a specific accident or incident, or there is an underlying cause. In the case of this worker, the (sic) Review Office is of the opinion that the left foot stress fracture may have occurred at work, but the worker’s choice of improper fitting work boots, her weight, as well as the ‘moderate sized plantar calcaneal spur’ and the ‘osteoarthritic change’ in her left foot are all underlying causes that would have predisposed her to stress fracture. The (sic) Review Office does not feel her duties played a role in the injury and, due to her inconsistency in describing the occurrence of this injury; we are unable to establish that there was an accident or incident occurring at work to have caused the injury. The fact that the injury happens at work rather than elsewhere does not give the worker entitlement to benefits. In the opinion of the (sic) Review Office, there is insufficient evidence provided to establish a relationship between the left foot stress fracture and an accident arising out of and in the course of employment.”

The worker incurred her injury on June 19, 2003. She testified at the hearing that while walking over an uneven and cracked area of the floor leading to the cafeteria she hurt her left foot and twisted her toes. At the time of the incident, the worker was wearing work boots, which were a size larger than normal as she had developed a bunion on her right foot prior to the incident in question. We note that it was not until after her injury that the worker was properly fitted with flexible arch supports for her boots as recommended by her treating physician.

As a result of the incident, the worker experienced pain, soreness, redness and swelling on the top and bottom of her left foot. She made an appointment with her treating physician at the earliest possible date. The initial presenting diagnosis was a strain injury with residual tendonitis; however, this was later changed to a stress fracture of the second metatarsal of the left foot.

An x-ray of the left foot taken on July 7, 2003 approximately two and a half weeks after the alleged incident revealed the following: “There is a little periosteal new bone adjacent to the distal shaft of the second metatarsal and the appearance is consistent with a stress fracture.” A second x-ray conducted three weeks later confirmed additional new bone appearing at the stress fracture in the shaft of the second metatarsal.

Medical literature speaks of a stress or March fracture as being a hairline (incomplete) fracture of a metatarsal usually affecting the distal end of the second or third metatarsal. Pain is of sudden onset together with marked tenderness at the fracture site along with swelling of the top of the foot. The fracture line is faint and often overlooked at the time of initial x-ray and thus delaying precise diagnosis. However, bony enlargement at the fracture site is readily discernable after two or three weeks. We note that the time frame of the discovery of the stress fracture on x-ray is consistent with the worker’s report of a painful foot at work on June 19, 2003.

After having weighed all of the evidence, we find that the claim is acceptable. The evidence clearly establishes an accident, as defined under the GECA, the GECR and/or WCB policy 44.05.10, did, on a balance of probabilities, occur on June 19, 2003 as alleged. Accordingly, the worker’s appeal is hereby allowed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 31st day of March, 2005

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