Decision #26/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a work related foot injury that occurred on April 16, 2008. The claim for compensation was denied by primary adjudication and Review Office on the grounds that neither were able to establish that the worker suffered personal injury by accident arising out of and in the course of her employment. The worker disagreed with the decision and an application to appeal was filed through the Worker Advisor Office. A hearing was held on January 15, 2009 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker reported that she injured her right foot on April 16, 2008 while on route to a business appointment which was off her employer’s premises. She described her injury as follows:
“…I stepped out of the car and my ankle cracked, it locks into place from time to time, and I lost my balance and I fell and hit my foot on the curb on the way down. I got back into the (sic) and I wrapped my foot with a tensor bandage that I keep in my purse (have a lot of ankle problems), [co-worker] went to the meeting and then we went back to the store. My foot had swollen immensely so she took me to the hospital.”
The employer’s incident report stated the following: “[worker] was visiting a high school on company time for work related reasons. As she was getting out of her car, she turned around and tripped, falling on a curb. When falling she injured her right foot.”
On April 23, 2008, the worker told her WCB adjudicator that she had trouble with her ankle cracking for one and a half years. It was not related to an injury and she was not sure what caused it. She mentioned it to her doctor about a year and half ago but he did not have much to say about it and no tests were done. With regard to the mechanism of injury, the worker explained that she stepped onto the curb and had half of her foot on the curb when her ankle cracked which caused her ankle to lock and she lost her balance and fell. The worker agreed with the adjudicator that there was no hazard that caused her to fall.
Medical reports show that the worker sought medical attention on April 16, 2008 and an x-ray of the right foot revealed an undisplaced fracture involving the base of the fifth metatarsal.
On April 24, 2008, a WCB adjudicator denied the worker’s claim for compensation. In her opinion, the evidence established that the worker’s injury was the result of a pre-existing medical condition and there was no contributing hazard of the premises which led to her injury. On June 26, 2008, the worker appealed the decision to Review Office. The worker contended that her right foot injury occurred while performing her work duties and that the presumption section of The Workers Compensation Act (the “Act”) applied to her case as there was no evidence that the injury did not arise out of her employment.
Prior to considering the worker’s appeal, Review Office spoke with the worker on July 21, 2008. The worker reported that she was a passenger in a four door car on the date of accident. They were parked in a bus loop. The worker’s door was the closest to the curb and sidewalk. The worker got out of her car and then went to get paperwork from the back seat. She was leaning into the back of the car while standing on the curb. She then felt her ankle crack. It gave out and her foot hit the curb. The worker stated that she was standing on the curb for a few seconds prior to her ankle cracking. The worker could not recall the placement of her other foot. Her right foot was on the curb and not between it. The worker denied tripping as was indicated on her employer’s incident report. The worker indicated that her purse is the size of a duffel bag and that she carries everything in it including bandages. She said she was not carrying the tensor bandage specifically for her ankle.
On July 22, 2008, the worker contacted Review Office to provide additional information. The worker reported that the vehicle she was in on the date of accident was a white SUV that belonged to someone else. She was not squatting or leaning to get the papers from the back seat. She reached with her arms to get the papers from the back seat. She did not have to reach much as the vehicle was parked close to the curb. The worker reported that she was wearing flat ballerina slippers that had a rubberized grip at the bottom and that she wore this type of footwear all the time. The worker stated she was not sure what caused her injury. She was not sure why her ankle cracked or gave away. It did not give away before but had made a cracking sound in the past.
In a July 22, 2008 decision, Review Office confirmed the adjudicator’s decision that the claim was not acceptable. Review Office found that the worker was in the course of her employment on April 16, 2008 as she was at a work related appointment. However, Review Office was unable to establish from the evidence that the worker’s right foot injury was caused by an accident which arose out of her employment. In making it decision, Review Office attached weight to the information provided by the worker at the time of her application for compensation benefits, i.e. “I stepped out of the car and my ankle cracked, it locks into place from time to time, and I lost my balance and I fell and hit my foot on the curb on the way down.” Review Office found from this statement that the precipitating event that led to the worker’s right foot injury was that her ankle cracked and locked into place. It found that the worker’s ankle cracking/locking is not incidental to her job duties at the time of the injury and therefore there was no causal link to her employment. Review Office also found from the evidence that the worker admitted to having prior problems with her ankle despite the contrary information given by her to Review Office on July 21, 2008.
On July 29, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of the Act provides:
4(1) 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. (emphasis added)
The worker’s position:
The worker was assisted by a worker advisor at the hearing. His submission was that when adjudicating the claim, too much weight was given by the WCB to the worker’s ankle condition as the cause of her accident. It was submitted that there were hazards at play in the work duties. The hazard in this case was the act of reaching into a vehicle to retrieve documentation and in the process falling forward and twisting. It was suggested that this was possible even without any ankle condition. There was also the inherent hazard of the curb. It would not be uncommon to stumble or bump into a curb while walking. Finally, it was noted that the injury occurred within a very short time frame and it was very difficult to know exactly what had occurred. Given that the injury did occur within mere seconds, the WCB was in no position to conclude that it was proven that the injury was not due to any hazard of the workplace. It was submitted that the claim should be acceptable.
Analysis:
The key issue to be determined by the panel surrounds interpretation of the phrase “arising out of and in the course of employment” and whether the worker’s personal injury was caused by an accident which both arose “out of the employment” and “in the course of her employment.” The panel has no difficulty accepting that the worker was in the course of her employment at the time of the accident. The main issue before the panel is whether or not the accident arose out of the employment. On a balance of probabilities, we are able find that the accident did arise out of the employment and that the claim is therefore acceptable.
As a preliminary issue, the submission by the worker advisor made reference to the statutory presumption contained in the Act. Subsection 4(5) provides as follows:
Presumption
4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.
This section creates a rebuttable presumption of law that where an accident occurs in the course of employment, it will be presumed that it also arose out of the employment, unless the contrary is shown. In this case, the panel is satisfied that there exists sufficient evidence to determine whether or not the accident arose out of the worker’s employment and therefore application of the presumption is not required.
After considering the evidence as a whole, the panel is satisfied on a balance of probabilities that the accident arose out of the employment. The worker’s evidence at the hearing was that prior to the accident her ankle cracked regularly, on a daily basis. The cracking had started approximately one and a half years prior. At her annual check-up, she had spoken to her physician about her ankle and was assured that it was nothing to worry about, simply a release of pressure build up. The worker stated that when her ankle cracked, she would experience a sharp pain, stop for a brief second, then continue with what she was doing. It was more inclined to crack after she had been on her feet for a few hours. The cracking had never made her ankle give way or cause her to fall.
On the day of the accident, the worker advised that she had got out of the passenger side of the vehicle, then opened the rear passenger door to retrieve some promotional materials. The vehicle was parked approximately 1 to 1 ½ feet away from the curb. She stood on the edge of the curb, with her left hand on the car and her weight leaning forward. Her heels were raised off the ground and the part of her foot which was in contact with the ground was the balls of her feet. She was wearing flats with a thin sole and a rubberized grip. The worker was unsure as to what caused her to fall, but she was definite that she felt her ankle crack, and then she slipped/lost her balance, which caused her to twist and fall to the right. She fell completely to the ground, and believes that she struck her foot on the curb as she was falling, thus causing the fracture. The fracture was located approximately half way up her foot between the ankle bone and her baby toe.
The panel is satisfied that hazards associated with the worker’s employment situation at the time of the accident contributed to the fracture that she suffered. Her ankle cracked on a daily basis, but she had never previously experienced any harm from a crack nor did she ever fall. It was the worker’s employment duties which put her in an awkward position where she was required to lean into the vehicle with her weight forward while balancing on the edge of a curb. The panel is of the opinion that this contributed to the accident. The worker’s foot was in a compromised position due to her location and the injury was likely caused by striking or scraping her foot on the curb. Had she not been balancing on the curb at the time of the accident, she would not likely have suffered a fracture to her foot as a result of her ankle cracking.
For the foregoing reasons, the panel finds that the accident both arose out of and in the course of the worker’s employment. Her claim is therefore acceptable. The appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 24th day of February, 2009