Decision #147/07 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (WCB) for a left ankle injury that occurred on January 3, 2007 which she attributed to the nature of her work duties as a produce worker. The claim was denied by primary adjudication and Review Office on the grounds that it could not establish that the worker’s fracture of the left talar bone had arisen out of and in the course of her employment. The worker appealed to the Appeal Commission and a hearing took place on September 26, 2007. The worker appeared and provided evidence. She was represented by a worker advisor. No one appeared on the employer’s behalf. The appeal panel discussed the case on two occasions, the last one being November 5, 2007.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On February 2, 2007, the worker filed a claim with the WCB for left ankle pain that occurred on January 3, 2007. The worker said she was not sure what caused her ankle injury until she found out the results of a bone scan and was told by her physician that it was likely work related. The worker’s job duties involve repetitive standing and walking on concrete floors while stocking product during a 30 hour work week.
On January 4, 2007, the worker was admitted to a community health centre with a diagnosis of “possible septic arthritis”. The attending physician outlined the worker’s history as follows: “This 44 year old lady came to the clinic with severe pain in her left ankle that started the day before…There was no history of trauma. This is the first time she had such severe pain in this area. She was previously diagnosed with plantar fasciitis in the same ankle.” Following a number of laboratory tests which were considered to be normal, the worker was discharged on January 6, 2007 and was instructed to continue taking antibiotics.
The worker underwent a bone scan on January 26, 2007 which revealed “Probable stress fracture of the left talar bone and probable left talonavicular arthritis. Probable mild right plantar fascitis.”
In a decision dated February 8, 2007, the worker was advised that there was insufficient evidence to conclude that the injuries she sustained on January 3, 2007 were related to an accident arising out of and in the course of her employment. Therefore the WCB was unable to accept responsibility for her claim including time loss and medical treatment.
On March 14, 2007, a worker advisor provided the WCB with a report from the treating physician dated March 9, 2007. The worker advisor contended that repetitive walking and standing on cement floors caused the onset of the worker’s left ankle symptoms and satisfied subsections 1(1) and 4(1) of The Workers Compensation Act (the Act). The worker advisor also referred to the presumption provisions of subsection 4(5) and WCB policy 44.05.
In a report dated March 9, 2007, the treating physician stated, “The fracture in [the worker’s] foot has nothing to do with plantar fasciitis and borderline diabetes. It is, as its name implies, certainly caused by repetitive walking and pressure on the foot. I have not heard of anybody with plantar fasciitis having had a fracture. Besides, the place is different than the area of fracture in [the worker’s] foot.”
On March 26, 2007, the WCB adjudicator wrote to the worker advisor stating that after a review of the March 14, 2007 submission, there would be no change to the original decision. On March 28, 2007, the worker advisor appealed to the Review Office.
On April 5, 2007, Review Office confirmed that the claim was not acceptable. Review Office was of the view that the worker’s left ankle was spontaneously fractured and that it was a coincidence that the left talar bone was fractured at work. It did not believe the worker’s job duties played a role in her injury. It determined that the definition of “accident” had not been met which meant that subsection 4(5) of the Act had not been met. On June 18, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing took place on September 26, 2007.
Following the hearing, the appeal panel obtained additional medical information from the worker advisor’s office which consisted of the following reports and findings:
- January 4, 2007 x-rays of the left ankle revealed no bone or joint abnormality. Right foot x-rays revealed a hallux valgus deformity, slight bunion formation and no other bone or joint abnormality;
- February 20, 2007 x-rays of the left foot revealed “…a transverse lucency through the base of the 1st metatarsal suggesting an undisplaced fracture. I cannot identify any other fractures. On this study I cannot identify a talar fracture. Clinical correlation is requested.”
- February 22, 2007 – an orthopaedic specialist commented that the worker appeared to have a talar bone stress fracture and that she may have talonavicular arthritis as well but it was difficult to know for sure. He stated he would see the worker again in four week’s time for a second x-ray.
- June 1, 2007 a CT scan of the lower extremities revealed “…narrowing of the anterior subtalar joint with mild subchondral sclerosis consistent with mild to moderate osteoarthritis. Mild osteoarthritis is also seen in the mid foot. There is no evidence of a stress fracture in the talus. No other significant abnormality is seen.”
Reasons
This case focuses on whether the worker’s left ankle conditions are causally related to her employment. For the panel to accept this worker’s claim, we would have to find that the worker’s left ankle condition arose both out of and in the course of her employment, or in the alternative that the presumption clause in subsection 4(5) applies and its criteria are met. After a careful review of the file evidence and the submissions of the parties, the panel was unable to make these findings.
The Worker’s position:
The worker provided evidence about her job duties, in particular the amount of walking she did, and about the onset of sharp pain in her left ankle on January 3, 2007. The worker’s representative argued that the worker’s attending physician diagnosed a stress fracture in the worker’s ankle, and that the panel should accept the attending physician’s assertion that this particular fracture was caused by the walking component of the worker’s job. She stated that subsections 1(1), 4(1) and 4(5) of the Act were relevant to this case, and that the test for an accident had been met.
Legislation:
Subsection 4(1) of the Act sets out the circumstances under which claims for injuries can be accepted by the Board, and states that the worker must have suffered an accident that arose out of and in the course of her employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.
Subsection 4(1) is clear that both parts of the test must be met: firstly, it must arise out of, and secondly, be in the course of the worker’s employment.
Subsection 4(5) sets out a presumption, where there is evidence available as to one part of the test and none whatsoever regarding the other part of the test. Under these circumstances, the presumption applies, and allows for the establishment of a workplace accident.
WCB Policy 44.05, Arising Out of and in the Course of Employment, provides the following clarification of the terminology used in these sections of the Act.
Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The Act provides that where the accident arises out of employment, it shall be presumed the accident occurred in the course of employment unless the contrary is proven; and where the accident occurs in the course of employment, it shall be presumed that the accident arose out of employment unless the contrary is proven.
Analysis:
The evidence in this case discloses that the worker suffered a significant increase in left ankle pain in the middle of her work shift. As such, the second part of the test described in subsection 4(1) of the Act – “in the course of employment” – appears to have been met.
The first part of the test described in subsection 4(1) of the Act -- “arising out of” -- is described more fully in WCB Policy 44.05, which states that there must be evidence that the injury was caused by some hazard which results from the nature, conditions or obligations of the employment.
In this particular case, the question really turns on:
- What is the diagnosis of the worker’s medical condition?
- Is that diagnosis causally related to the worker’s job duties?
In our analysis of this second part of the test for an accident, the panel was greatly assisted by additional medical information received after the hearing, which was shared with the worker and her representative for their comments. The panel notes from the medical information on the file that two possible diagnoses were identified with respect to the worker’s left ankle: a stress fracture of the talar bone, and osteoarthritis of the talonavicular joint. These diagnoses were both proposed in an early bone scan of the worker’s ankle on January 26, 2007.
However, a later x-ray dated February 20, 2007 does not identify a fracture. This was later confirmed on a CT scan dated June 1, 2007, which indicates that “there is no evidence of a stress fracture in the talus.” The CT scan does, however, confirm the presence of mild to moderate osteoarthritis in the anterior subtalar joint.
Based on this medical information, the panel finds that the proposed early diagnosis of a stress fracture is ultimately ruled out by later medical tests. What remains is a diagnosis of osteoarthritis in the worker’s left ankle. The panel notes that this degenerative condition was identified on the bone scan taken within weeks of the worker ceasing work, and the panel concludes that this condition was a pre-existing (and non-compensable) medical condition that would, over time, lead to varying (increasing and decreasing) symptoms and pain complaints. The panel further finds that the medical evidence does not support a workplace induced aggravation of the worker’s condition. Indeed, these conclusions are supported by the worker’s evidence that she had switched to highly cushioned shoes shortly before she noticed her increased symptoms, there was no change in her job duties, and there was no specific event that led to her increased symptoms on January 3, 2007.
As such, the panel finds that the worker’s medical condition in January 2007 was, on a balance of probabilities, a pre-existing medical condition that preceded the workplace incident, and was neither aggravated or enhanced by her activities on the job that day. As a result, the panel concludes that the worker’s injuries did not arise out of her employment.
Based on these findings, the panel concludes, on a balance of probabilities, that the test for a workplace accident, as set out in subsection 4(1) of the Act is not satisfied, as the worker’s injuries did not arise out of and in the course of her employment.
The worker’s appeal regarding the acceptability of her claim is therefore denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 6th day of November, 2007