The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by 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 his employment.

Worker’s position

The worker was self-represented at the hearing. His position was that his left foot injury was caused on April 24, 2011. He was completing a delivery when his left foot slipped off a rung while going down a metal ladder attached to the side of a semi-trailer, causing him to land on the ground.

In response to questions from the panel, he described his job duties that day. He described the steel ladder that was attached to the left side of the side-door of the trailer which had a vertical pole that he could grasp to assist him going up or down the ladder. He demonstrated how he swung off the trailer floor onto the ladder using the pole, and indicated that he was holding on to the vertical pole with both hands, as he started down the ladder. When his left foot slipped, he landed on both feet, both hands were still on the pole, and he did not lose his balance. The bottom rung of the ladder was 1-1.5 feet above the ground. After a moment of surprise, he walked to the cab and started the trip back to Winnipeg. He did not notice any pain at that time, and did not mention the incident to his trainer/co-worker who was in the passenger seat of the cab and was not a direct witness to the incident.

The worker then described the rest of his day. Subsequent to the ladder incident at about 4 p.m., he proceeded to drive the semi-trailer for 1.5 hours from western Manitoba to the employer's premises in Winnipeg; park the semi-trailer and perform the standard external vehicle check for about 20 minutes, starting at 6 p.m.; walk back into the office at 6:30 p.m. and do the necessary paperwork, walk to his own truck and drive home where he arrived at about 7:10 p.m.; remove his boots and walk around the house in his socks during a quiet evening before going to bed. He was completely pain-free during this whole period. He first noted the pain and bruising when he woke up the next morning at 9 a.m. when he got out bed and tried to walk to the bathroom.

The worker also made an earlier submission on file that the WCB medical advisor who suggested that his condition was not related to his job had not examined him, and that we should rely more on the reports of the doctors who were involved in his care.

Employer’s Position

The employer was represented the hearing by its Distribution Centre Manager. The manager noted that the worker had not advised anyone at work of an injury that day, and that they were very surprised to hear of the apparently work-related cause, days later. He noted that the worker later advised that he was unsure of the exact cause of the injury, but only assumed that it must have happened when he stepped off the ladder. This was not consistent with a significant traumatic event at work. He also noted that the worker had been able to drive a truck on the highway, using his left foot for the clutch, for an extended period of time following the incident, and was walking fine afterwards. As well, the co-worker who had worked with him all that day provided a statement that the worker had not complained of any injury that day and did not appear to be in any difficulty.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that he suffered an injury from a workplace accident within the meaning of subsection 4(1) of the Act. In order to do so, we must find that there is a causal connection between his left foot condition and an event or mechanism of injury that happened while he was in the course of his work on April 24, 2011. After consideration of all the evidence on file, the panel finds, on a balance of probabilities, that the worker's foot problems are not related to his employment, for the reasons that follow.

In support of our decision, the panel places particular reliance on the following evidence and findings:

• The worker had a controlled fall from the bottom of the trailer's side ladder, of approximately 1-1.5 feet. He landed on both feet and the force of the fall was controlled by gripping with both hands on the vertical pole on the ladder. The fall was not described as awkward, the worker stayed upright, and the worker did not indicate any pain or discomfort at that time.
• The worker was wearing protective work boots that were tied up properly, and he landed on an asphalt surface.
• Over the remaining part of the day, the worker had a rotation of extended sitting periods mixed with walking activities, while wearing his boots. The panel notes that the worker did not notice any delayed effects or discomfort especially when getting back onto his feet after a 90 minute drive back to Winnipeg or after subsequent sit/stand rotations, to suggest that there was contact point bruising or swelling or any other traumatic injury to the bottom of his foot. The worker was in fact able to do a standard 20 minute external vehicle check immediately after parking the semi-trailer in the employer's compound.
• The worker first took off his boots when he got home at 7:10 p.m., after which the worker walked around his house in his socks. Again, the panel notes that the worker had no pain or discomfort when his left foot was in direct contact with the floor surfaces in his home.
• The worker's first report of pain was when he woke up at 9 a.m. the next morning, some 17 hours after the previous day's incident. He limped to the bathroom, and later noticed his foot was swollen. He went to an urgent care facility later that evening. During the day, he spoke with a dispatcher and advised his foot was sore, but was unable to point to a specific work source. While there is a later discrepancy as to whether the specific fall was discussed on April 25, 2011, the panel places greater weight on the worker's first discussions with the WCB, dated April 28, 2011, in which he indicates that he spoke with an individual with the employer, advising him that he wasn't exactly sure what happened but that he assumed it was from the slip in the rural community since there was nothing else that happened. He further indicated that he hadn't complained that evening since "it didn't hurt."
• The panel notes that a clear diagnosis has not yet been provided for the worker's ongoing medical problem with his left foot, now some 7 months after the April 24, 2011 incident. While an early diagnosis does query a fracture at the first metatarsal phalangeal joint of the left foot, the early diagnostic tests do not support this diagnosis. In any event, it is the panel's view that any significant traumatic injury would have been apparent soon after the 4 p.m. incident, and places considerable weight on the absences of any symptoms until the next morning. This gap is not consistent with the worker's later speculation that a particular controlled fall might have been the basis of the injury because he could not think of another cause.
• Medical support in this regard is provided in a May 11, 2011 memo by a WCB medical advisor who reviewed the mechanism of injury that was provided by the worker as a possible cause of the worker's ongoing left foot difficulties. The panel notes that the medical advisor relied on similar evidence as to what the panel heard at the hearing. The medical advisor states that missing a step and landing heavily on the foot could account for a soft tissue injury to the foot. However, he noted that there are a number of unaccountable atypical features that would suggest otherwise, including: the lack of acute pain and/or activity restriction associated with the injury, as he would expect immediate pain and difficulty weight-bearing; the worker's ability to drive an extended distance immediately afterwards including use of the clutch with his left foot; and, "the use of the work boots could protect against movement related symptoms but would equally have prevented such an injury from occurring in the first place." In this regard, the panel further notes that there were also no movement-related symptoms after the worker first removed his work boots (at about 7:10 p.m.) or for the next 3+ hours when he was walking around in his socks, until he went to bed. After careful consideration, the panel agrees with and adopts the opinion of the WCB medical advisor that a foot injury did not occur at work on April 24, 2011, and is not the basis of his left foot complaints that were first noticed on April 25, 2011.