Decision #142/11 - Type: Workers Compensation

Preamble

The worker reported that she injured her left foot in a work-related accident during the week of November 3-6, 2008. The claim for compensation was denied by the Workers Compensation Board ("WCB") as it was determined that the evidence did not establish that the worker suffered an accident arising out of and in the course of her employment. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on March 21, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On November 13, 2008, the worker filed a claim with the WCB stating during the week of November 3-6, 2008 she was archiving files at work. Due to a bad back, she was unable to lift the boxes and therefore used her left foot to kick the boxes to the back office during the course of the week. There were 25 boxes. The worker indicated that she began to notice symptoms in her left foot on November 8, 2008 during the middle of the night. The pain in her foot radiated up into her left leg, thigh and calf area. On November 12, 2008, she went to the hospital as she did not know what was causing her foot pain. An ultrasound was performed to check for a possible blood clot. She then reported the injury to her superintendent on November 12, 2008.

The employer's accident report indicated that the worker advised her superintendent on November 12, 2008 that she damaged the tendons in her foot.

When speaking with a WCB adjudicator on November 25, 2008, the worker indicated that she would move the box with her toes sometimes and other times her foot would be flat against the box to push it. Three-quarters of her left foot was numb.

On January 8, 2009, the worker advised the WCB that she did not report the injury during the week of November 3-6, 2008 as she was not having pain during that time and had no symptoms. She was away on November 10, 2008 on a pre-booked vacation and November 11, 2008 was the statutory holiday. On November 12, 2008, she informed her employer that she was having left foot difficulties and was relating them to the motions of moving boxes at work on November 3-6, 2008.

On January 15, 2009, the worker was advised that her claim for compensation was not acceptable based on the following reasons:

  • The worker reportedly felt fine and was not experiencing any left foot difficulties when she left work on November 7, 2008;
  • The onset of her left foot difficulties came on suddenly and severely on November 9, 2008 which did not correlate to the activities she performed November 3-6, 2008;
  • Medical information indicated there were degenerative and osteoarthritic changes in her foot;
  • The file evidence did not support that the left foot injury occurred at work.

The worker's claim was considered again by primary adjudication based on a report by the treating sports medicine physician dated January 1, 2010. The physician noted that the worker was initially seen on July 14, 2009. The described mechanism of injury was pushing heavy boxes along the floor with her feet. The mechanism of injury involved resisted rotational force through the hip and low back. The worker reported that she had some mild low back pain initially and lower leg pain later in the day. The presentation was consistent with a lumbar radiculopathy. The physician stated the noted mechanism of injury without any other reported or documented explanation likely resulted in the noted diagnosis.

On February 8, 2010, the worker was advised that following review of the new medical report, it was still the WCB's position that a personal injury by accident arising out of and in the course of her employment had not been met.

On March 16, 2010, the adjudicator spoke with the worker's co-worker who confirmed that the worker was moving boxes with her foot during the week of November 3-6, 2008 and that she complained that her foot was hurting her after she had kicked/pushed the boxes. She was unable to recall the exact date she was first aware of the injury but indicated that possibly it was a few days after she had been kicking/moving the boxes.

The adjudicator also spoke with a second co-worker on March 16, 2010. She confirmed that the worker had been moving boxes with her foot. She believed the worker was away from the office for several days off sick due to the injury and when the worker came back was when she was first aware of the injury to the worker's foot.

On March 19, 2010, the worker was advised that no change would be made to the original decision. It was felt that given the information provided by the two co-workers, it was not likely that the co-workers were aware of her injury prior to November 12, 2008. On June 3, 2010, a worker advisor appealed the decision to Review Office.

On August 9, 2010, Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that after a review of the evidence, it was unable to establish on a balance of probabilities that an accident occurred arising out of and in the course of the worker's employment causing injury to her left foot or lower leg. It also could not establish a causal relationship between the diagnosis of left L5 versus S1 radiculopathy and the worker's work duties. On September 21, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing which was held on March 21, 2011, the appeal panel requested additional information from five treating physicians. The information was later received and was forwarded to the interested parties for comment. On September 15, 2011, the panel met further to discuss the case and render its final decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. 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 deals with causation and whether the worker’s left foot difficulties arose out of and in the course of her employment in November 2008.

The Worker’s Position

The worker was assisted by a worker advisor at the hearing. It was submitted that the evidence did support, on a balance of probabilities, a relationship between the performance of the work duties and the left L5-S1 radiculopathy. Pushing the boxes with the left foot involved resisted force through the hip and lower back. This workplace activity was physically difficult to perform and was outside of the worker's usual day to day activities. The awkward positions and the pushing movements caused stress on the worker's lower back.

Medical support from the treating sports medicine physician confirmed that the worker's presentation would be consistent with a lumbar radiculopathy in which distal extremity pain is typically more predominant than low back pain. Two co-workers confirmed the work activities of moving the boxes. Notice of the accident to the employer, seeking medical care and filing the WCB were all timely and well within the required time frames. Accordingly, it was submitted that the claim should be accepted and referred to the WCB to determine entitlement to wage loss benefits.

The Employer’s Position

Two representatives from the employer were present at the hearing. The employer's position was that it supported the WCB's decision on the claim. The employer acknowledged that the worker was a long term employee and was considered to be a very good employee who was knowledgeable in her position. The employer did not feel, however, that there was a connection between the work duties and the accident. It was noted that the worker left work on the Friday without stating that there was a problem with her foot or her back after moving the boxes throughout the week. She also did not mention the mechanism of injury when she first sought medical attention at the emergency department.

The employer also questioned the sports medicine physician's letter of January 1, 2010, in that it stated a history of the worker reporting some mild low back pain initially and lower leg pain later in the day. The employer submitted that this did not align with the facts on the WCB file. Overall, the employer's position on the appeal was that the worker's claim was not acceptable.

Analysis

The issue before the panel is claim acceptability and whether the worker’s left foot difficulties arose out of and in the course of her employment in November 2008. In order for the appeal to be successful, the panel must find that the worker’s condition was caused by an accident she suffered while in the course of her employment. On a balance of probabilities, we are not able to make that finding.

At the hearing, the worker described the duties she performed at work during the week of November 3-6, 2008. She was packing up files from filing cabinets to get them ready for archiving. The files were put in boxes, which then had to be moved to the back of the office. There were 24 boxes in total. The worker was guarded with straining her back so she did not want to lift the boxes. She therefore moved the 24 boxes to the back of the office by pushing/kicking them with her left foot. The distance the boxes were moved was approximately 25 feet. The job was performed over a span of four days, Monday to Thursday.

The diagnosis of the worker's left foot difficulties is not certain. She was initially assessed for deep vein thrombosis when she attended at a hospital emergency department on November 11, 2008. This was ruled out. Other foot conditions such as plantar fasciitis, tarsal/metatarsal sprain, and possible fracture or dislocation were investigated and discounted. Imaging studies showed only some degenerative and osteoarthritic changes in her foot.

At the time of the hearing, the focus in the worker advisor's submission was on a lumbosacral spinal nerve injury. She relied on a report dated January 1, 2010 by the sports medicine physician who opined that as the worker's left foot condition had not yet resolved, the diagnosis was likely an L5/S1 lumbar radiculopathy.

At the hearing, the worker expressed frustration with the fact that she had seen many doctors, yet no one was able to help her. She described her condition as being about the same as it was in November 2008. She was scheduled to have an MRI performed in June 2011.

Following the hearing, the panel requested more medical evidence in order to gain further insight into the nature of the worker's left foot difficulties. The information can be summarized as follows:

  • In early 2009, the worker was seen by a neurologist for complaints of diffuse left foot pain and lateral foot numbness, with additional complaints of calf pain and foot swelling. Investigations revealed that there was never any real, definitive abnormality in the worker's neurological examination other than some reduced sensation. Electrodiagnostic studies of lower extremities showed some non-specific findings of denervation in the foot intrinsic muscles which was not corroborated by any other abnormalities on a subsequent CT scan.

Other examinations, including a bone scan of December 2008 and subsequent laboratory investigations, failed to reveal any underlying rheumatologic condition. The neurologist was never able to substantiate an organic basis for her pain. He stated that, overall, there did not seem to be evidence of polyneuropathy, radiculopathy, definitive complex regional pain syndrome or inflammatory arthropathy to explain her complaints.

  • A podiatrist saw the worker in June 2009, but was unable to note anything definitive. She therefore referred the worker to the sports medicine physician.
  • A neurosurgeon who saw the worker in July 2011 addressed concerns regarding cervical discomfort and hand numbness. The panel does not consider these conditions as being related to the present claim. It would appear that the June 2011 MRI was directed at the cervical spine, but the neurosurgeon did comment that the control MRI of the lumbosacral segment showed once again diffuse protrusion of the L4-5 disc without significant impingement/distortion of the neural structures.
  • Historical chart notes were provided by the worker's family physician and by the treating sports medicine physician.

After reviewing all of the available evidence, the panel finds on a balance of probabilities that the worker's left foot difficulties are not related to the job duties she performed during the week of November 3-6, 2008. In coming to this conclusion, the panel relies on the following:

  • There is a significant delay of time between the time the worker performed the duties and the onset of her symptoms. From Monday to Thursday, she pushed the boxes with her foot with no difficulties noted. She worked Friday without experiencing any symptoms. During the day on Saturday, she experienced no problems. It was only early Sunday morning at approximately 2:00 am that she experienced an intense onset of foot pain. The panel finds that the time lag between the performance of the duties and the first onset of symptoms makes it unlikely that there is a causal relationship.
  • The January 1, 2010 medical report of the treating sports medicine physician is the only medical opinion linking the worker's left foot condition to the workplace mechanism of injury. The physician's opinion, however, is based on an inaccurate account of events. It states: "It is noted that (worker) did report some mild low back pain initially and lower leg pain later in the day. The pain worsened in the preceding days. The above presentation would be consistent with a lumbar radiculopathy in which distal extremity pain is typically more predominant than low back pain." Given the inaccurate history as to the onset of symptoms, the panel places limited weight on this opinion.
  • The neurologist who saw the worker in 2009 was unable to identify any neurologic injury as the cause for the worker's left foot pain.
  • The additional medical information obtained by the panel indicates that the worker has in the recent past suffered from a number of medical conditions which may be responsible for the left foot difficulties, including documented L5-S1 disc degeneration in a November 21, 2001 x-ray, a diagnosis of chronic pain syndrome/fibromyalgia in 2002, right knee arthroscopy in 2003, and left knee arthroscopy in 2004.

In view of the foregoing, the panel is not satisfied on a balance of probabilities that the worker's left foot difficulties were caused by the performance of her work duties on November 3-6, 2008. As a result, we must find that her claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of October, 2011

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