Decision #36/07 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s injury arose out of and in the course of her employment.
The worker fractured her foot while at work on May 31, 2006. The Workers Compensation Board (WCB) did not accept the claim as it could not establish a relationship between the worker’s injury and an accident as defined in The Workers Compensation Act (the Act). The Review Office agreed with the WCB. The worker appealed to the Appeal Commission.
A hearing was held on January 22, 2007, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing.
Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On May 31, 2006, the worker claimed that she felt a pop with immediate pain at the outer edge of her left foot while passing out medications during the course of her employment. She was wearing regular nursing shoes at the time. After the incident, she finished what she was doing and applied ice on her foot during coffee and lunch breaks. After an x-ray examination, she was told that she fractured her left fifth metatarsal. The worker stated that she did not slip or fall and that her left foot was sore for about two weeks prior to her injury. She could not recall a specific incident at home or at work prior to May 31 that may have caused soreness in her left foot. The worker later advised the WCB that she did mention the injury to her co-workers.
Medical information dated June 1, 2006 confirmed that the worker fractured her left fifth metatarsal region based on the results of an x-ray examination. The worker was then given a lower leg walking cast as a form of treatment.
A WCB medical advisor reviewed the file information on June 7, 2006 and stated, “strong forces through the muscles of the posterior ankle can fracture the base of this metatarsal.” In his opinion, the radiological report did not suggest that a pre-existing condition had influenced the worker’s injury.
On June 15, 2006, the worker told her adjudicator that she saw a doctor for her sore foot on May 26, 2006 and was given a prescription for orthotics. On the morning of May 31st she was pushing her cart when she heard the pop in her foot. In performing her duties, she was walking and pushing her cart and turning corners. She did have to run that morning. The worker indicated that she had been working on the D side of the hospital for the full month of May which was a busier section and that she couldn’t count how many times she had to run for bed checks. She said there were two residents requiring bed checks and that one of these residents was high risk. She had to take this resident along with her when passing out medication to keep an eye on her and therefore had to push her medication cart along with the patient in her geriatric chair.
The adjudicator spoke with the worker’s supervisor on June 16, 2006. She was not aware of the worker having any ongoing difficulty with her foot prior to May 31. She stated that the worker may be doing some fast pace walking and that it was very busy at work, particularly in the last eight weeks. She was unable to confirm that there was running done at work on a regular basis but if there was an emergency, the nurses are walking at a fast pace.
On June 20, 2006, the worker’s claim for compensation was denied as the adjudicator could not establish that an accident arising out of and in the course of the worker’s employment occurred. The adjudicator acknowledged that the worker was on her feet for most of her shift and at times had to walk at a fast pace, but she could not establish that this was the cause of the fifth metatarsal fracture.
Later on June 20, 2006, the worker spoke with a WCB supervisor and provided additional information regarding the onset of her symptoms. The supervisor documented her conversation with the worker: “…was standing facing the cart, the cart was against a partition, she had to turn to her left to go and provide the patient with the medication (in the dining room). She had to turn her body to the left and she took a step. She didn’t turn her ankle (in the sense one would expect with a sprained ankle.)”
A report from the family physician dated July 6, 2006 noted that the worker was seen on May 26, 2006 for left foot pain complaints. He noted that the worker gave no history of trauma and the pain was localized to her left lateral foot. He found the proximal end of the fifth metatarsal quite prominently protuberant and significantly tender. There was no bruise erythema or swelling over this area. He felt the worker had bilateral genu varus and bilateral pes planovalgus deformities and orthotics were prescribed for both feet.
A WCB medical advisor reviewed the report of July 6, 2006 and stated, “…this type of fracture is related to a strong force such as an inverse/twisting motion of the foot which avulses or pulls off the tuberosity. There are stress fractures of the fifth metatarsal but they are located in a different region of the bone (further along the metatarsal). The worker’s description of preceding pain is suggestive of a stress fracture but this diagnosis is not supported by the type of fracture described on x-ray.”
On July 13, 2006, the supervisor informed the worker that she reviewed the report from her family physician but was still unable to accept her claim for compensation.
On September 14, 2006, a worker advisor appealed the decision to deny the claim. She noted that the accident was immediately reported to the employer on the day of accident, May 31, 2006, and that the worker sought medical treatment soon after. She stated there was no evidence to support that the worker’s left foot condition which rendered her disabled from performing her duties occurred outside of her employment.
The worker advisor provided the Review Office with a September 19, 2006 report by a sports medicine physician for consideration. The specialist stated, in part, “…Although the record does not document a specific injury to her foot when she felt the pop, she had to have had some inversion shear force to create enough stress to cause the fracture. This can occur without twisting or slipping on the foot, when the patient goes into partial inversion during a step. This event clearly occurred during the course of her employment.”
On September 28, 2006, Review Office outlined its decision that it could not establish that the worker’s fracture of the left fifth metatarsal arose out of and in the course of her employment. It stated in part, that walking alone would not produce a fracture and that it was mere coincidence that the problem became amplified while walking at work on May 31, 2006. The fact that the left foot pain flared up on May 31, 2006 did not make the situation a work-related accident or incident. On October 26, 2006, the worker advisor appealed Review Office’s decision and a hearing was arranged.
Reasons
Worker’s Position
The worker was represented by a worker advisor who made a submission on behalf of the worker. The worker answered questions posed by her representative and the panel.
The worker explained that she attended her family physician on May 26, 2006 for a different medical matter but asked the physician to examine her left foot. She indicated that her left foot was sore and that she had been limping on it for two or three weeks. She also advised that she had not missed any work due to her foot.
With respect to May 31, the day that she injured her foot, the worker explained her foot was not sore at the start of her shift. She said she was dispensing meds from a cart when she took a step to the left to take meds to a patient, heard a pop and had an increase in pain. The pain was at the base of the metatarsal, right in the middle. She explained that she was working on a very busy ward and everything was done at a hurried pace.
The worker advised that after she completed dispensing the meds she had a coffee break and was able to ice her foot. She also advised that she had tight support stockings on and did not remove them to see if her foot was swollen. She said that after the coffee break, the pace slowed down and she mainly did paper work.
The worker advised that she went home after work and then attended a clinic where she saw the sports medicine physician.
The worker advised there were two earlier incidents at work on May 13 which may have made her foot sore. She described the incidents which involved aiding a resident.
The worker’s representative noted that the worker had no disabling symptoms prior to May 31 and had no disabling symptoms at the start of her shift. The symptoms did not arise until the work-related incident at 9:30 AM. The advocate also noted that the worker attended a sports medicine physician after work on the day of the incident and the physician diagnosed the fracture.
The worker’s representative contrasted the worker’s symptoms as found by her family doctor on May 26 with those found by the sports medicine physician on May 31 and submitted that the evidence supports the view that the fracture occurred on May 31. The representative also submitted that mechanism of injury resulted from the worker’s turning and stepping to the left while in the performance of her duties, when there was a distinct pop, and an immediate onset of pain and swelling which required treatment. She stated that the evidence supports the acceptance of the claim.
Employer’s Position
The employer was represented by its human resource director. The representative advised that the employer is not at the hearing to take a position either for or against what has happened. He stated that as an employer their concern is that the panel is satisfied that the situation is one where the injury or disability is clearly the result of work activity. He noted that the worker has returned to work and is capably performing her duties.
Applicable Legislation
Subsection 4(1) of 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
(a) A wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease
and as a result of which a worker is injured.”
Analysis
The issue before the panel is whether the worker’s claim is acceptable. For the appeal to be successful, the panel must find that the worker suffered an injury by accident arising out of and in the course of her employment. The panel made this finding and concludes that the claim is acceptable.
The panel finds that the evidence establishes that prior to her shift on May 31, 2006, the worker did not have disabling symptoms indicative of a previously fractured metatarsal. The worker advised the panel that her left foot was sore prior to May 31 but that she had not missed work as a result of her sore left foot. The soreness was not continuous but arose gradually during the day, based on the amount of walking she did. She also advised that on May 31 her foot was not sore at the commencement of her shift. The worker’s supervisor advised that she was not aware that the worker had any ongoing difficulty with her left foot before May 31. While the worker saw her family physician on May 26, 2006 for left foot complaints, the physician’s findings were that the proximal end of the fifth metatarsal was prominently protuberant and tender. There was no bruise, erythema or swelling over the area. The panel places considerable weight on the physician’s report that he did not find or support a fracture of the fifth metatarsal and did not take the worker off work.
The panel has considered the worker’s description of the events surrounding the incident on May 31, 2006 and finds that the incident meets the definition of accident provided by the Act being a chance event occasioned by a physical or natural cause which event arose out of and in the course of employment and resulted in injury. The panel relies upon the sports medicine physician’s opinion in a report dated September 19, 2006. The sports medicine physician provided an explanation of how the worker would incur an avulsion type fracture without twisting or slipping. The panel prefers this explanation of the mechanics needed to cause a fracture to that offered by the WCB medical consultant.
The panel notes that the worker’s evidence as to her foot placement is consistent with the scenario described by the physician, and to the panel. The physician was aware of the circumstances surrounding the injury, examined the worker’s foot, viewed the radiographs of the injury and related the explanation to the actual facts of this case as opposed to the opinion of the WCB medical advisor.
Having found there was an accident as defied by the Act, the panel finds, on a balance of probabilities, that the accident arose out of and in the course of the worker’s employment. The worker was at work performing her duties. She was in the process of giving medicine to a patient when she moved her left foot in such a way that the fracture occurred.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of March, 2007