The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that his claim for bilateral ankle complaints is not related to an accidentarising out of and in the course of his employment.  A hearing was held on December 17,2015 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On July 9, 2013, the worker filed a claim with the WCB for injury to his lower legs that he related to being on his feet all the time while employed as a city driver/labourer. The date of the accident was said to be June 21, 2013 and the date it was reported to the employer June 24, 2013. The worker stated:

I am on my feet 5 - 6 hours a night and working on cement and walking back and forth on cement and working in the yard. Carrying dunnage and other freight. I am moving from 120 lbs and less of things around. I wear steel toe boots and on my feet most of my shift. I work from 5:00 pm to 10 or 11:00 pm I am working in the warehouse and yard and from 9:00 am to 5:00 pm I am driving tractor/trailer/semi in the city and I pick up small loads over the city and I am getting in and out of the semi truck. I also move the loads around using a pallet jack and sometimes a fork lift. I am pushing, pulling and strapping the freight. The clutch in the trucks are old and hard to press. This is a very strenuous job.

The worker reported that he first noticed symptoms in June 2013 which became worse over the June 22^nd weekend. The worker indicated that he delayed seeking medical treatment as he was working a lot of hours (i.e. from 9:00 a.m. until 9:00 p.m.). He didn't realize it was serious and he figured he would be fine over the weekend.

The Employer Injury Report dated July 30, 2013 indicated that the worker called on June 24 to say he hurt his leg over the weekend and it was sore; that he requested the day off to see his doctor and called the following day to say he needed rest.

A report from a walk-in clinic doctor regarding a visit on May 30, 2013 indicated that the worker had "slight swollen tenderness left tendoachilis" and that "blood work done March 22, 2013 showed evidence of elevated uric acid." The walk-in doctor listed 4 diagnoses, including gout, chronic asthma, and tendonitis left tendonachilis.

A Doctor First Report from the worker's family doctor for an examination on June 25, 2013 stated that the worker complained of pain in the Achilles tendons for about one year and that it was worse on the left. The diagnosis was "Achilles tendon pain NYD (not yet diagnosed)."

A second Doctor First Report from a sports medicine physician in respect of an examination on July 3, 2013 stated:

1.5 year hx (history) right achilles pain. Worse when wakening in AM, also wakens him at night. Also worse with prolonged standing. Contralateral achilles pain as well, but not as severe. Also bilateral knee pain...Works in warehouse, heavy lifting. Former rugby/squash, less in last few years.

The diagnosis was "Achilles tendinosis r/o (rule out) autoimmune disorder."

On July 11, 15 and 18, 2013, the worker discussed his claim with a WCB adjudicator. The worker provided detailed information regarding the job duties he performed on a normal work day and a description of his past and current symptoms.

On July 10 and 15, 2013, the accident employer's representative provided the WCB with details regarding the worker's work schedule and job duties. He said the worker told him and other co-workers that his foot problems started to hurt over the weekend and that this was not work-related.

On July 16, 2013, the WCB contacted a co-worker who confirmed that the worker said he did not injure himself at work, only that something was wrong with his ankle and it started to hurt over the weekend.

In a decision dated August 6, 2013, the WCB advised the worker that his claim was not accepted, as the information received did not establish a relationship between his injury and an accident arising out of and in the course of his employment. The WCB adjudicator acknowledged the worker was required to stand and walk throughout his work shift but did not find there was any direct relationship between his job duties and his diagnosed condition. The adjudicator referred to medical information on file indicating the worker's bilateral Achilles injury pre-existed his employment with the accident employer and he reported to his employer this was not a work-related condition. On March 10, 2014, the worker appealed the decision to Review Office.

On April 30, 2014, a WCB orthopedic consultant provided the following comments regarding the causes of bilateral Achilles tendonitis:

1. Bilateral Achilles tendinitis is most common in "weekend athletes" who run and jump without taking part in a regular exercise and stretching program. It can also occur in diabetes and in inflammatory joint diseases such as rheumatoid arthritis or gout. It is reported that this worker has gout.

2. The condition is known to be often prolonged, with recurrences of symptoms over several years. Such episodes may be precipitated by running and jumping, or by prolonged walking and standing (i.e. more than 6 hours daily). It tends to be aggravated by flat heel footwear and relieved by heel raises. There is nothing about steel toes work boots that would be considered more aggravating than regular footwear. Repetitive pressing against pedal resistance would be an aggravating factor.

On May 28, 2014, Review Office concluded the claim was not acceptable as it had determined the worker had not had an accident arising out of and in the course of his employment. Review Office stated, in part, it did not agree with the worker that the increase in his work activities was the cause of his bilateral Achilles symptoms. It stated that if work duties were the cause, the onset would have been present closer to when the physical work activities started in April 2013, when the worker increased his work hours, and when he drove for longer periods of time.

Review Office determined that the work duties as described were not causally related to the development of bilateral Achilles tendonitis. It accepted the employer's report that the work duties were varied and would not have the worker standing for more than approximately 30% of his shift. Review Office found that when a medical condition is bilateral, this is more likely indicative of an internal process rather than external work factors.

On December 17, 2014, the worker asked Review Office to reconsider its previous decision based on a report from the treating sports medicine specialist dated August 24, 2014 who supported the worker's claim for bilateral Achilles tendonopathy.

On January 22, 2015, Review Office advised the worker it had considered the August 24, 2014 report but preferred to place more weight on the worker's medical status prior to the WCB claim, the opinion from the WCB orthopedic consultant regarding the causes of Achilles tendonitis, and the work duties described by the employer. Review Office indicated it did not find that the definition of an accident had been met.

On June 24, 2015, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. The worker advisor provided the appeal panel with a written submission in advance of the hearing.

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.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Worker's Position

The worker was represented at the hearing by a worker advisor, who made a presentation on his behalf.

It was submitted the evidence supports that the development of the worker's bilateral foot and ankle injury was causally related to his work as a driver and warehouse worker in 2013. Before working for the accident employer, the worker had been at home for about 5 years caring for his children. His return to the workforce involved long hours on his feet and intense physical activity, with very different physical demands. The abrupt change in the nature, duration and intensity of activity contributed to the onset of his injury.

It was noted that the worker was working 40 hours a week when he started in April 2013, but this increased after his orientation. He experienced daily soreness, but continued to work with the pain and stiffness until the weekend of June 22, 2013, when his symptoms progressed to the point where he could no longer walk and had to seek medical care.

It was submitted that although the worker was diagnosed with gout, this was a misdiagnosis and he never had gout. Rather, the evidence supports that the worker's ankle symptoms were actually due to achilles tendonitis which was caused by the physical demands associated with his work.

It was submitted there is ample medical evidence to confirm the diagnosis of bilateral tendonitis, including that of the walk-in clinic doctor on May 30, 2013, the worker's family physician on June 25, 2013, and the treating sports medicine specialist on July 3, 2013. A report from a musculoskeletal physician dated April 8, 2015 which was filed as part of the worker's written submission further confirms that diagnosis.

It was submitted that reference by the WCB orthopedic consultant to prolonged walking and standing as causative factors for the development of achilles tendonitis is consistent with the worker's account of his workplace duties. The report from the worker's treating sports medicine specialist dated August 24, 2014 further supports the worker's appeal.

In conclusion, it was submitted the evidence supports that the worker's activities in the workplace, especially because he was unaccustomed to their intensity and duration, resulted in the development of his bilateral Achilles tendonitis, and his claim is acceptable. Alternatively, even if the panel were to conclude the worker suffered from gout or some other pre-existing condition, the evidence supports that his ankle condition was aggravated by his employment activities, and his claim is acceptable on the basis he sustained an injury due to the combined effect of those duties acting upon an underlying condition.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker's claim is acceptable. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained an injury which was caused by his work duties performed during the course of his employment. The panel is able to make that finding.

At the hearing, the panel carefully questioned the worker with respect to his work duties over the course of his employment. He said he had been out of the workforce for several years, taking care of his children. He started working for the accident employer on April 1, 2013. Just before he started, the employer sent him for a physical assessment. The worker said the assessment was very extensive and thorough, and the result was "100% pass."

Describing his duties in general, the worker stated he would arrive between 9:00 and 10:00 in the morning, and work in the warehouse until about 12:00 noon. His duties included sweeping and cleaning the entire warehouse, moving large sheets of plywood to be used inside the trailers to separate and protect freight (dunnage), emptying large bins of garbage, and helping drivers load their trucks. As he was relatively new, he was not driving a forklift and would be on his feet the entire time. Between noon and about 5:00 p.m., he would drive a tractor trailer to various locations within the city, delivering and picking up loads to bring back to the warehouse. He would load and unload the freight, unless the client had a forklift, in which case they would use the forklift to load the freight. The trucks he drove were old, with a very stiff clutch which was hard to work. When driving, he would be constantly working the clutch with his left foot. After returning to the warehouse, the worker would take a 30-minute lunch break then go back to doing the same duties in the warehouse as before. At that point, he would also be doing work outside, including moving trailers around the yard.

The worker confirmed he was only working 40 hours a week when he started his job, as the first few weeks were for orientation. In the weeks ending May 11 and 18, 2013, he worked night duty, hauling loads out to Western Manitoba, where he would do a trailer switch with another driver, then return to Winnipeg. He did not do any warehouse work during those 2 weeks. At the end of that 2-week period, the worker let management know he preferred to remain in the city because of his family situation, and was told he would be taken off night duty and could do city work, i.e. warehouse work and driving in the city. In the week ending May 25, 2013, he did a mixture of night runs outside the city and city work, which included 7.34 hours of overtime. Over the next 3 weeks, the worker did fewer night runs and more city work, with more overtime hours. In the week ending June 22, 2013, he did city work only, working 40 regular hours, plus 20.3 hours of overtime. All his overtime hours were spent working in the warehouse and the yard.

The worker stated that he had generalized stiffness when he started working in April, particularly in his legs, but nothing that alarmed him. He had expected his body to be stiff. The job was very physical and he was carrying a lot of freight. He would be stiff when he woke up in the morning, but was not in pain and was fine once he got moving. His ankles became an issue, however, when he woke up on Saturday, June 22. In his words, "I got out of bed and it was just pain. It was absolute pain in my ankles and I could not walk."

The worker said he saw the doctor at the walk-in clinic on one occasion only, when he took one of his children to the clinic on May 30, 2013. He said he did not agree with the walk-in clinic doctor's diagnosis of gout, that he mentioned it to his family doctor when he saw him on June 25, and his family doctor told him there was no way he had gout. As indicated above, the family doctor's diagnosis at that time was Achilles tendonitis pain not yet diagnosed.

The panel notes the evidence indicates the worker had a tendonitis condition prior to May 30, 2013. While the condition was present and diagnosed by the walk-in clinic doctor on May 30, the panel is of the view that sufficient risk factors could not be identified at that time to establish its cause or that it was work-related. Up until then, the worker was managing quite well in the workplace with his hours and duties, and was able to function with no problem.

The panel notes, however, that there was a dramatic change in the worker's job duties during the month of June, especially during the week ending June 22, and a corresponding dramatic change in symptomology. The evidence establishes the worker went back to doing city work at the end of May. He worked longer hours, with very few breaks. In particular, he spent an increasing number of hours working in the warehouse and the yard, performing duties which involved prolonged periods of walking and standing. In the week ending June 22, 2013, he worked an average of 12 hours a day, including an average of 4 overtime hours in the warehouse and the yard each day. At the end of that week, on June 22, he woke up in a lot of pain, and was unable to walk or function.

The panel finds that, consistent with the causes or criteria set out by the WCB orthopedic specialist, this change in the worker's job duties, and particularly the increased standing and walking, resulted in a significant exacerbation of the worker's tendonitis condition. The panel notes that this is confirmed by the worker's family doctor on June 25, 2013 and by his treating sports medicine physician on July 3, 2013.

In the circumstances, the panel therefore finds, on a balance of probabilities, that the development of the worker's bilateral Achilles tendonitis was causally related to the duties performed by the worker during the course of his employment. The worker's claim is acceptable.

The worker's appeal is allowed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 11th day of February, 2016