The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker sustained a calcaneal fracture as a result of an accident that arose out of and in the course of her employment on December 8, 2008. A hearing was held on April 15, 2010 to consider the matter.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Background

While visiting a client’s home on December 8, 2008, the worker reported that she heard a snap in her left foot while walking from her car onto the client’s property. The worker indicated, “I walked from gravel to pavement and while walking on pavement I just walked normally and heard a snap. I then could not walk anymore…There was nothing that I slipped on. There is really no explanation as to why that happened. The environment was okay.”

The employer’s accident report indicated that the worker injured her left foot on December 8, 2008. The accident was described as follows: “While walking up sidewalk at clients steps heard a snap and could not walk. Sidewalk was flat and clear of snow and ice. This is not a repeat injury.”

On December 17, 2008, the worker advised a WCB adjudicator that there was no incline to the pavement and there were no hazards such as ice. The worker indicated that she may have hit a crack in the cement but was not looking down when she was walking nor did she examine the cement. The worker confirmed that she did not slip or trip but was walking normally and heard a snap. The worker reported that she had left fasciitis in the past and was a diabetic.

At the request of primary adjudication, a WCB medical advisor reviewed the file on January 6, 2009. He noted that the medical information referred to the presence of a calcaneal fracture. He indicated that this type of fracture generally arose with the application of significant force to the heel such as a fall from a height. “It is possible that in the setting of osteoporosis and/or diabetes, this fracture could occur with less force applied. Note that a diagnosis of osteoporosis has been considered but has not yet been made in [the worker]. [The worker] is diabetic.”

On January 9, 2009, the worker was advised that the WCB was unable to accept her claim as the symptoms in her heel came on without an intervening event other than walking while on route to a client. It was indicated in the decision that the definition of accident under subsection 1(1) of The Workers Compensation Act (the “Act”) had not been met as the action of walking did not meet the definition of an event “arising out of and in the course” of the worker’s employment.

On March 10, 2009, a union representative asked Review Office to reconsider the adjudicator’s decision dated January 9, 2009. The union representative outlined the view that the adjudicator failed to apply the presumption clause in considering the worker’s claim. She indicated that there was no evidence to support that the injury was related to anything but work and it must be presumed that the worker suffered a foot injury in the course of her duties and therefore her injury occurred arising out of her duties. The advocate indicated that the worker entered the yard of her client’s home on December 8, 2008. Due to high snow levels, the worker was unable to access the yard through the gate. The worker had to walk on gravel, around the gate on to the lawn and back onto the concrete sidewalk. As she was walking to the client’s door, the worker felt a snap in her foot and then was unable to weight bear on her left heel. She was unable to complete her shift and immediately reported the accident to her supervisor and sought medical treatment.

A submission was made to Review Office by an advocate representing the employer dated April 23, 2009. The advocate believed that an accident did not occur and indicated that the medical evidence conclusively showed that the worker’s left calcaneus fracture was due to a non-compensable pre-existing health factor.

On April 30, 2009, Review Office determined that the worker’s claim for compensation was acceptable. Review Office placed weight on the following evidence when making its decision:

· the submission made by the worker’s union representative where she included specific details of the different walking surfaces the worker was required to perambulate which could be identified as hazards. The worker was required to walk on gravel and a concrete sidewalk and navigate various snow levels.

· the April 29, 2009 WCB medical advisor opinion that “In the setting of diabetes and other conditions which possibly affect (the worker), it is plausible to have sustained a calcaneal fracture in the manner described in this case.”

Review Office found that the diagnosis of a calcaneal fracture was consistent with the mechanism of injury as documented on file. The injury occurred just after the first few snowfalls whereby the ground would likely have been covered in snow, ice and uneven surfaces. On a balance of probabilities, Review Office felt that the worker sustained a calcaneal fracture as a result of an accident that arose out of and in the course of her employment on December 8, 2008.

On May 13, 2009, the employer’s advocate appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Chairperson Choy and Commissioner Finkel:

Majority 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 key issue to be determined by the panel is the 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 the employment.”

WCB Policy 44.05 Adjudication and Compensation - Arising Out of and in the Course of Employment is a policy which was developed to provide some guidance in determining whether an injury is compensable. It states:

The concept of “arising out of and in the course of employment” is fundamental to the adjudication of claims. Claims for compensation are decided on their individual merits after all reasonable effort has been made to obtain all available evidence.

The employer’s position:

An employer advocate and a representative from the employer were present at the hearing. It was submitted that the worker’s left calcaneus fracture did not arise out of her employment duties, but was due solely to non-compensable, pre-existing health factors. It was an unfortunate injury which could have happened at any time, anywhere. While there was no question that the worker was in the course of her employment, the injury was not due to anything related to her employment. There were no hazards reported to be associated with the work environment that could have contributed to a heel fracture. It was submitted that the initial WCB decision to deny the claim was the correct course of action and the employer asked that the panel reverse the decision to accept the claim.

The worker’s position:

The worker appeared at the hearing and was accompanied by a union representative. It was submitted that a requirement of the worker’s employment was that she go out and provide care in the community. This involved walking from her car to the client’s home to provide care. She was not able to control nor predict the weather, the conditions of the streets, the parking situations, or the accessibility of the homes in which she was providing care. On December 8, 2008, due to snowfall and the parking situation, the worker was not able to access the house from the front. She had to walk around her car, shuffle through a gate, step off the sidewalk onto the lawn and back onto the sidewalk to access the home. When she walked from the uneven ground to the hard concrete is when she felt the snap in her foot. This constituted a hazard that the worker encountered during the course of her work. While the worker did have a pre-existing condition of diabetes, this condition was under control. It was acknowledged by the WCB medical advisor that in the setting of diabetes and other conditions, it was plausible for the worker to have sustained a calcaneal fracture in the manner described. Overall, it was submitted that the WCB had already acknowledged the role of the pre-existing condition by granting the employer 50 percent cost relief, and that the worker was entitled to benefits under the Act.

Analysis:

The question for the panel in this appeal is whether the worker’s calcaneal fracture resulted from an accident arising out of and in the course of employment. The majority of the panel finds that while the fracture occurred during the course of employment, it did not arise out of the worker’s employment.

There are two elements to the phrase “arising out of and in the course of employment.” Both elements must be present for a claim to be acceptable. The analysis of the issue is therefore twofold. We must ask: “did the accident arise out of the employment?” We must also ask: “did the accident arise in the course of the employment?”

In the Course of Employment

According to WCB Policy 44.05: 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.

There is no question in this case that the injury occurred in the course of employment. The worker had already started her shift and she was at the residence of her second client of the day. The majority is satisfied that at the time of the injury, the worker was in the course of her employment as a care provider.

Arising out of Employment

WCB Policy 44.05 provides: 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.

In the opinion of the majority, there was no work related hazard which caused or gave rise to the worker’s injury. The requirements of the worker’s job did not create an unusual circumstance which put the worker at any greater risk than what she would expect to encounter on a regular daily basis. She was simply walking on a sidewalk. There was no special condition created by work which differed from what the worker would normally experience in her everyday life. As such, the majority cannot find that the injury arose out of the worker’s employment.

In the original report of accident by the worker, the worker indicated that: “I was walking from my vehicle into the property I was visiting. I walked from gravel to pavement and while walking on pavement I just walked normally and heard a snap. I then could not walk anymore … There was nothing that I slipped on. There is really no explanation as to why that happened. The environment was okay.”

At the hearing, the worker elaborated on the conditions which she encountered on the day of her injury. She advised that she had to approach the residence from the back lane as there was no parking allowed on the main street. She parked on the gravel parking pad at the rear of the house and walked towards a chain link fence which surrounded the yard. Her evidence was that it had snowed the night before and there was 8 to 10 inches of new snow on the ground. The sidewalk had been shoveled so there was a clear walkway, however the gate to the fence stuck and only opened half way. As a result, the worker had to shuffle to get through the gate. When doing so, she placed her left foot off the walkway in the snow and it sank down through the snow. Her next step was with her right foot, and it landed on the sidewalk. Her next following step was with her left foot, and it was when she placed her left foot down on the sidewalk that she felt the snap. The worker agreed that the injury occurred as an acute event with that single step. At the time, she was wearing comfortable supportive shoes with sturdy rubber soles. She could not feel gravel through them.

This version of events was challenged by the employer at the hearing. It was submitted that this account differed from the worker’s first reported account, which stated that there were no hazards. It was also noted that historical weather records indicated minimal snowfall at that time.

In the majority’s opinion, even if we accept the worker’s account of injury as described at the hearing, there is still insufficient evidence to convince us on a balance of probabilities that the nature, conditions or obligations of the worker’s employment created some sort of hazard which caused the worker’s injury. Simply walking on a sidewalk is not out of the ordinary. Even if the worker had to walk on gravel, shuffle through a gate and step in the snow, by the time she stepped down and fractured her calcaneus, she was already taking her second step on the paved, cleared sidewalk. We find that the condition of the ground played no factor in causing the worker to injure herself.

As noted by the WCB medical advisor, the worker has at least one diagnosed medical condition which makes it plausible for her to have sustained a calcaneal fracture in the manner described. It was also noted by the medical advisor that in the setting of osteoporosis and/or diabetes, a fracture could occur with less force applied. The majority accepts that this is in fact what occurred. It was the force of the worker taking a regular step down which caused her to suffer the fracture. We are of the view that the worker could have been walking anywhere, at anytime, and the injury could have occurred. It was only coincidental that the injury occurred while she was in the course of her employment. We do not accept that there was any particular work hazard which caused the fracture to occur. The conditions did not cause the worker to place any greater amount of weight or force on her heel than she otherwise would have placed.

For the foregoing reasons, we find that the injury did not arise out of the employment, and accordingly, the claim is not acceptable. The employer’s appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 7th day of June, 2010

Commissioner's Dissent

Therefore I have concluded, on the balance of probabilities, an event occurred that arose out of and in the course of the worker’s employment that resulted in an injury and therefore the claim is acceptable. I would dismiss the employer’s appeal.

P. Walker

Commissioner

Signed at Winnipeg, this 7^th day of June, 2010.