Decision #174/99 - Type: Workers Compensation
An Appeal Panel hearing was held on November 25, 1999, at the request of the claimant. The Panel discussed the appeal on November 25, 1999.
Whether or not the claim is acceptable.
The claim is acceptable.
The claimant submitted a claim for compensation benefits with respect to a fractured bone at the bottom of his right foot which he related to a May 19, 1999, work related incident. The claimant described the injury as follows:
- "I was making a delivery to [customer's name], I got out of my truck and walked to the rear to climb up into my trailer. I put my right foot on the bumper to climb up, got part way up when I heard a crunch and got immediate pain in my foot."
The employer's report of injury regarding the above incident indicated the following:
- "[The claimant] states foot broke when he stepped on the bumper of the trailer. He came to work with a severe limp that day."
Subsequently, on June 2, 1999, the employer advised a Workers Compensation Board (WCB) adjudicator that he had concerns that the injury did not happen at work. He stated that the claimant came to work with a significant limp and that other co-workers heard him say that his foot had been caught in a chair while he was playing with his dog the previous day.
The hospital emergency report, dated May 19, 1999, diagnosed a possible fracture of the fifth metatarsal right foot. The report indicated that the claimant stepped up into a truck and twisted right foot 2 days ago.
X-ray of the right foot, through plaster, dated May 26, 1999, revealed a transverse fracture involving the mid shaft of the fifth metatarsal in good position and alignment.
On June 10, 1999, the WCB adjudicator contacted the claimant and asked him to explain why his employer indicated that he reported to work on May 19th with a noticeable limp. The claimant advised that he had been limping for over a month. He had fallen at work a couple of months ago which caused him to limp. As a result of the fall, the claimant said he pulled a hamstring and landed on his left foot. He had fluid in his knee in March because of the fall.
The claimant went on to state that he did not have an incident where he had fallen while playing with his dog. He said that he had been cutting grass on the previous Saturday and had hooked the dog's chain with his left leg and fell on his left leg. The claimant said that he may have told his supervisor his left knee was more sore than normal because of the fall.
The claimant indicated that he had no explanation as to why the hospital report indicated that he "stepped up into truck and twisted right foot approximately two days ago."
The claimant continued working after the accident doing his deliveries. He stated that he had a high pain threshold.
On June 14, 1999, the adjudicator spoke with the employer. The employer indicated that the claimant had walked with a slight limp in the past. He stated that he saw the claimant arrive at work on May 19th and that the claimant could barely get out of his vehicle that morning. The claimant was walking with a very pronounced limp and he felt it was the claimant's right foot causing the limp. The employer said that the claimant had told him he got his foot caught in dog chain the previous night and twisted it.
On June 25, 1999, the claimant was advised that, based on the weight of evidence and on a balance of probabilities, the WCB was unable to substantiate that he fractured his right foot while performing his job duties on May 19th. As such, his claim for compensation was not acceptable. On July 12, 1999, the claimant appealed the decision to Review Office.
In a decision, dated August 6, 1999, Review Office confirmed that the claim was not acceptable. Review Office consulted with a WCB orthopaedic specialist who was of the opinion that the mechanism of accident reported by the worker was unlikely to have caused a transverse fracture of the mid shaft of the metatarsal bone. He indicated that such an injury would be far more likely to have occurred with some type of direct trauma. The consultant also pointed out that the mechanism of injury reported by the worker would have resulted in a basilar fracture, rather than one at mid shaft, had this been the true cause of injury.
Review Office concluded that it was satisfied that the claimant's injury was not caused by stepping up onto the bumper of a trailer on the morning of May 19, 1999.
The claimant appealed the Review Office's decision and an oral hearing was held on November 25, 1999.
Section 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 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. That is, "a chance event occasioned by a physical or natural cause; and includes
- A wilful and intentional act that is not the act of the worker,
- event arising out of, and in the course of, employment, or
- thing that is done and the doing of which arises out of, and in the course of, employment, and
- an occupational disease
and as a result of which a worker is injured."
At the hearing, the claimant recounted the details of how he injured his right foot on the day in question.
- "The day before my injury I had been outside in the back yard doing something and something scared my dog. She was on her leash and she went across one way and hooked my ankle and knocked me down.
I had a mild sprain in my right ankle and again I landed on my left side, making my knee even worse.
So on the 19th of May, when I went into work, I informed my supervisor that I had got tripped by the dog the night before and that I would be doing my job a little slower.
He said, "No problem", you know. So we unloaded a big trailer and moved the stuff into the small trailer and then we went on our deliveries.
I was making a delivery to [name of customer]. I had got into the trailer once, moved the stuff to the back so I could carry it in. I got down and carried stuff in.
Then I was to go up again to get some more stuff, to bring to the back, when I grabbed it - - I could always bring the door down with me, because I can't bend this other knee and spring up. So I grabbed the handle and I lifted myself up.
Then all of a sudden I got a sharp pain and I just sort of went back and hit my glasses, which are still broken.
Then the receiver, he had been helping me, he was carrying stuff - - he didn't see it, because he had been inside. When he came out he asked me what was wrong and I said, "I think I did some serious damage to my foot". So he finished unloading the truck.
I closed the door. I had the stuff - - I had a couple of more deliveries, but I had moved the stuff right to the back so it wasn't so bad. I still couldn't put full pressure on - - I could walk on my heel no problem.
So I'm driving the truck with my heel on the gas and the brake. I was clutching good.
Then I finished my two deliveries and then I went to the hospital and I went to see the nurse at the emergency desk and I told her, I think I just did some serious damage to my foot, can I have it looked at?"
So she got a form and she started filling it out and while filling it out she was distracted, or she had to go do something three or four times while filling out the form.
The last thing that I remember was she asked me if I had any history, did I hurt it before.
And I said, "Yes, I twisted my ankle between a couple of pallets a couple of days ago."
Apparently that's what she wrote on the form. She didn't say nothing about what I told her at the beginning, that I had done serious damage.
So then they put me in the examining room. Dr. [the treating physician] came in, he looked at me and immediately ordered x-rays.
They moved me into the x-ray, took it, wheeled me back. He looked at the x-rays when they came and put me in another room and put a cast on it.
So while I was there I was trying to find the phone number of the other driver that we had. He was off on compensation as well because he had injured himself.
So I managed to get a hold of him and asked if he wouldn't mind coming to the hospital and getting the keys and taking the truck back to the terminal.
He came there. I told him what - - I fractured it, because the doctor said it was broken, he said I did a good number on it.
Then all the problems started there.
In addition to the claimant's narrative of the events of what happened, it is also important to note that the claimant is only five foot five inches tall and weighs 280 pounds. On the day of the accident, he was wearing running shoes and not steel shanked boots.
We found the claimant to be an extremely credible witness and had no difficulty in accepting his evidence. Also we found the mechanism of injury to be very plausible. When the claimant arrived at work on the day in question, he was able to perform his very heavy job duties. Had he already broken his foot, we do feel that he would have been able to perform these duties. Based on the weight of evidence, we find that the claimant did, on a balance of probabilities, fracture his right foot in the course of his employment. Accordingly, we find the claim to be acceptable and the claimant's appeal is hereby allowed.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of December, 1999