The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 24, 2005, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On July 31, 2004, the worker reported that her left ankle started to hurt while she was at work. The worker stated that she was doing a lot of lifting and was not sure if she had accidentally twisted it or if it was from something else. She stated that she finished her shift and tried to work the next day but that she was in a lot of pain. By the end of her shift she could hardly walk. The worker did not report the accident to her employer until August 3, 2004 as she thought her ankle would get better.

The employer's accident report confirmed that the worker reported a left ankle injury on August 3, 2004 and that "no specific injury was noted until later".

Medical information revealed that the worker had been treated by a chiropractor on August 2, 2004. The diagnosis rendered was mechanical foot pain. The worker related her difficulties to standing at work for long periods of time.

The worker was treated by a second chiropractor on August 3, 2004. The diagnosis rendered was an acute mild to moderate bilateral achilles strain/distal fibular compaction. In a progress report dated October 13, 2004, the chiropractor changed the diagnosis to "subacute mild bilateral achilles strain".

On August 11, 2004, an adjudicator with the Workers Compensation Board (WCB) contacted the worker to gather additional information concerning the work duties that she felt had led to the onset of her left ankle difficulties. The adjudicator also contacted several representatives with the accident employer to gather information about their knowledge of left ankle difficulties as described by the worker.

In a decision dated October 20, 2004, primary adjudication confirmed that the WCB was unable to accept responsibility for the worker's left ankle injury or medical costs associated with treatment. The worker was advised that the WCB was unable to establish a relationship between the diagnosis provided by her chiropractor and her work duties. On October 25, 2004, the worker appealed this decision and the case was forwarded to Review Office for consideration.

On November 5, 2004, Review Office indicated that the worker experienced intermittent bilateral ankle problems prior to her shift on July 31, 2004. The worker confirmed that there was no specific accident or incident to precipitate her ankle complaints on July 31, 2004, although she stated that she had been busier than usual at work that day. Review Office noted the variable diagnoses made by the treating chiropractors as well as exercises that had been suggested for the worker and the recommendations to lose 20 lbs. in four months. Based on these factors, Review Office felt that the worker's bilateral ankle complaints were more likely associated with her excessive weight rather than being attributable to the work that she performed as a healthcare aid. Review Office concluded that the worker did not suffer an injury by accident and that her claim for compensation was not acceptable. On December 8, 2004, the worker appealed Review Office's decision and an oral hearing was then arranged.

Reasons

Subsection 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 subsection 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."

It was the worker's evidence that she has been treated for several foot and ankle muscle difficulties over the past 1½ years. In addition, she advised that she has been prescribed various foot and ankle supports for her longstanding bilateral foot/ankle difficulties.

After having considered all of the evidence, it is extremely difficult to attribute her diverse foot and ankle diagnoses to a workplace incident. It is readily apparent that the worker's problems arise both on and off the job. Nevertheless, we find that the worker's bilateral foot/ankle difficulties are not, on a balance of probabilities, causally related to her job duties. We note in particular that there was no specific incident on July 31, 2004 when the worker reported an increase in symptoms, and also that the worker had been experiencing bilateral ankle difficulties well before that date which were not attributed to the workplace. We further find that the worker has not sustained an accident as defined by the Act. Therefore, the claim is not acceptable.

Accordingly, the worker's claim is hereby dismissed.

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 3rd day of May, 2005