The Appeal CommissionThe Workers Compensation Act of Manitoba

Background:

On February 20, 2006, the worker was walking down a flight of stairs at work when she heard and felt a pop on the outside of her left foot and was unable to weight bear on it afterwards. It became red and swollen and painful. She did not trip or fall.

X-rays taken that same day revealed calcific changes to the Achilles insertion as well as some irregularity of the third and fourth metatarsals, consistent with healed fractures. A definite acute fracture was not identified.

Given the swelling and the prior fracture to her metatarsals, the worker’s treating physician questioned whether she had re-fractured her foot in the same area.

In June 2006 a CT scan was taken which confirmed healed fractures of the third and fourth metatarsals. The treating physician questioned whether the fracture was related to the February 20, 2006 incident or not.

A WCB adjudicator denied the worker’s claim on March 8, 2006 but later accepted it on April 12, 2006 on the basis the worker had a pre-existing condition which predisposed her to injury. This decision was upheld by Review Office on May 19, 2006.

Employer’s Position

The employer disputes that the February 20, 2006 incident was a workplace injury. It says that the injury was spontaneous in nature and did not arise out of her employment; it could have just as easily occurred outside of her work hours.

Worker’s Position

The worker says that her claim is acceptable as she was engaged in an activity incidental to her employment when she sustained injury, which, in itself, was sufficient to meet the definition of accident as set out under subsection 1(1) of The Workers Compensation Act (the “Act”).

Analysis

For the employer’s appeal to succeed, we must find on a balance of probabilities that the worker did not suffer a workplace accident on February 20, 2006. We are able to make that finding.

For a claim to be acceptable, a worker must suffer an injury arising out of and in the course of employment in accordance with subsections 4(1) and 1(1) of the Act. Generally, “in the course of employment” means that a worker has to be engaged in a work-related activity; “arising out of employment” means that an injury has to be causally connected to that work-related activity. In other words, the injury has to occur because of some hazard that results from the nature, condition or obligations of the employment.

While we accept that the worker hurt her foot while at work, we find on a balance of probabilities, that this injury did not arise out of her employment. Indeed, the worker was simply walking down the stairs when she hurt her foot. Though she surmised in a March 19, 2006 letter to Review Office that she must have rolled or twisted it, she could not recall placing her foot in any unusual manner. This is consistent with the worker’s report to the WCB as well as her treating physician’s note that both indicate that the worker was simply walking down the stairs when her foot “popped”.