The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with whether there was a workplace accident within the meaning of subsection 4(1) and 1(1) of The Workers Compensation Act (the "Act").

On April 27, 2005, the worker filed a claim with the Workers Compensation Board (the "WCB") for bilateral Achilles tendonitis that occurred on January 8, 2005. His claim was denied by Rehabilitation and Compensation Services on the grounds that it was more likely that his bilateral Achilles tendonitis was caused by his footwear, which was a personal choice, than his employment duties. This decision was upheld by the Review Office on August 3, 2005. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on June 27, 2006, at the worker's request. The worker appeared. No one appeared on behalf of the employer.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker is a steam pipe fitter. His job duties require him to wear steel toe boots which he buys himself. He often climbs ladders and works on uneven ground.

In the summer of 2004, the worker was working on a site in Kenora, Ontario. He testified at the hearing that he would work on this job from Monday to Thursday from approximately 7 am to 5:30 pm, and Friday from 7 - 11 am. He would then return to Winnipeg for the week-end.

Several weeks after beginning this job, the worker began to notice a red bump about 1 inch above his right heel, over the Achilles tendon. Over the week-end, it would clear but over the next week it would re-appear while on the job.

The worker testified that this particular job was different than the majority of the jobs as it required fitting pipes in a small boiler room. As there was no room to stand, he had to do a great deal of kneeling. There was also extensive ladder climbing.

The worker explained that when he knelt, his left knee was up and his right knee was on the ground with his right foot straight back. While on the ladder, he would keep his toes on the rungs with the heels hanging off.

The steel toe boots he was wearing were a brand he had been wearing for 10 years prior and continues to wear today. He testified that he had never had problems with these boots before or since. He also said that he tends to change his boots every 18 - 24 months.

As time went by, the worker's red bump turned into a cyst and he began experiencing pain in his heels.

He saw his family physician in September, 2004. A report from the family physician dated June 6, 2005 links the worker's boots to his heel complaints:

"…on September 15, 2004…he complained of increased pain about the left and right heels for the past several months prior to his visit. He had noticed that the pain was quite considerable accompanied with localized swelling above both heels especially while wearing his work boots. This pain was not reproduced when wearing any type of shoe except his work boot. On examination, considerable tenderness and swelling was present over both Achilles tendons. The right heel being somewhat worse than the left…"

The worker continued with his duties but was still symptomatic. He was referred to a sports medicine specialist who saw the worker on April 20, 2005. The sports medicine specialist confirmed the diagnosis of bilateral Achilles tendonitis more on the right than the left. He noted that the worker was uncertain as to the cause of the bilateral heel condition but thought that it might be a by-product of his work duties as it was worse when performing his employment duties. He advised the worker to remain off work and take physiotherapy.

It was at this time that the worker filed a claim with the WCB. His April 21, 2005 accident report indicates:

"Sist [sic] on ankle due to wearing work boots. Wear full length steel toe and plate work boots which is mandatory and required at my job. Over time the constant pressure and physical demand which takes place in my line of work has caused a sist [sic] (inflammation) which has taken place on my Achilles tendon."

Both the worker and the employer were contacted by the WCB and the following information was obtained:

• the employer had no control over what footwear the worker wore except that the footwear be CSA approved. This was confirmed by the worker.
• the worker went back to work as of May 4, 2005. He indicated that he used thicker socks and inserts in his boots. He stated his boots must fit extremely tight to prevent injury from the ankle.
• the worker indicated that his ankle problems developed sometime last year and he was instructed by his specialist to increase the padding in his shoes. The increased padding helped, however, he was not working indoors and the extra padding was not conducive to working indoors as his foot got extremely hot. He needed time off work as his limping was increasing.
• the employer confirmed the worker's work duties involved frequent ladder climbing and working on uneven ground.
• the worker stated that his work boots were approximately 4-5 inches above his ankles and fit snugly so that sparks and other debris did not get into his feet. He was not aware of any co-workers with similar problems. He often worked in confined spaces which placed a fair amount of stress on his Achilles tendon.
• according to the employer's administrative assistant, the amount of time working on ladders varied so it was difficult to quantify how much time the worker spent working on ladders. She stated that 5-10% of the work is done in crawl spaces and in confined areas. The only requirement on the type of work boot worn by an employee is that it must be CSA approved.
• the worker stated that he has worn the same style of shoes for the last 10 years without a problem. He has worn his current pair of shoes for the last 1-1.5 years.

At the hearing the worker testified that he tried extra padding in his boots that did not give him any real relief. He also bought a new pair of boots in the same brand. He curtailed his recreational activities as he found that running aggravated his symptoms. He did state that his symptoms improved over the past year though he is still somewhat symptomatic.

Reasons

To accept the worker's appeal we must find that he suffered a workplace accident within the meaning of subsection 4(1) and 1(1) of the Act. In other words, we must find that the worker suffered personal injury arising out of and in the course of his employment. We are able to make that finding.

The worker's evidence about the onset of his symptoms is, in our opinion, persuasive. According to the worker's testimony, he spent several months working in a position which could cause unusually prolonged stretching of the Achilles tendon. We find that it was this positioning of the heels that, on a balance of probabilities, caused the worker's bilateral Achilles tendonitis.

Accordingly, we find that the worker's claim is acceptable. His appeal is therefore granted.

Panel Members

L. Martin, Presiding Officer
M. Bencharski, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of August, 2006