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 is not acceptable. A hearing was held on August 27, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker reported to the WCB on September 25, 2018 that he injured his right foot in an incident at work on September 24, 2018. In the Worker Incident Report he described the injury as follows:

As I was walking down the sidewalk I felt a sharp pain on the bottom of my foot. There was no specific incident.

I thought it might be a cramp and continued as I thought it would work it out.

But as I kept on walking the pain was getting worse. I couldn't put weight on my right foot.

The worker called in to work to advise he could not complete his shift and returned to his workplace. He reported the injury as required and attended for an appointment with a walk-in clinic physician on September 24, 2018. The physician noted the worker had mild swelling on the right side of his right foot and tenderness in the area around his small toe and peroneal tendon. The worker was diagnosed with "right foot pain most likely peroneal tendonitis" and restricted to duties that included no long standing or walking, no heavy lifting or carrying, no walking on uneven area, and no climbing stairs or ladders for two weeks. An x-ray of the worker's right foot conducted on September 25, 2018 found no abnormalities.

In a discussion with the WCB adjudicator on October 1, 2018, the worker confirmed the mechanism of his injury as described in the initial incident report.

At a follow-up appointment on October 4, 2018, the treating physician noted that the worker's right foot pain was better and recommended the worker to continue with restrictions of no long periods of standing and no walking long distances for a further two weeks. At that time, a referral was made to physiotherapy.

At an initial assessment with the physiotherapist on October 9, 2018, the worker reported intermittent pain in his right lateral foot/ankle that was aggravated with prolonged walking and standing. The physiotherapist diagnosed the worker with right peroneus brevis tendinopathy and recommended the worker continue with light duties for two weeks.

On October 18, 2018, the WCB advised the worker that his claim was not accepted. The WCB determined that walking was considered a personal routine task and as the worker had not reported a specific incident that caused his right foot pain, it could not be established that an accident occurred on September 24, 2018.

On October 22, 2018, the worker requested Review Office reconsider the WCB's decision. In his submission, the worker noted that the WCB had not taken into consideration the amount of walking he did while performing his job duties. He further noted that his job duties had changed on September 24, 2018 and on that date, he developed a cumulative injury from an increase in the amount of walking he was doing.

Review Office determined on December 5, 2018 that the worker's claim was not acceptable. Review Office did not accept that the injury was cumulative, as the worker did not report any issues or history of any problems with his right foot prior to September 24, 2018. It was further noted that had the worker's injury been cumulative, it would have been expected that both of the worker's feet would have been affected and that onset of the symptoms would have been gradual, not sudden, as reported by the worker. Review Office was unable to establish that an accident occurred on September 24, 2018 as there was no description of a hazard provided by the worker that would have explained how his right foot injury related to the performance of his job duties when his right foot pain occurred. The worker's claim was therefore not acceptable.

The worker filed an appeal with the Appeal Commission on December 11, 2018. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, the claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Under s 4(1) of the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including "a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Pursuant to s 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

Under s 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.

WCB Policy 44.05.10, Definition of "Accident" under the Government Employees Compensation Act (the "Policy") sets out that the definition of accident in the GECA will be given a broad interpretation as follows: 

1. The phrases "personal injury by an accident" will be interpreted to mean "personal injury by accident". 

2. The interpretation of "accident" will encompass both accidental cause and accidental result. That is, the injury itself may be considered the "accident". 

3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion will be consider an "accident".

Worker's Position

The worker represented himself in the hearing and answered questions put to him by the panel members.

The worker's position is that he injured his right foot as a result of a significant increase in his work-related walking and stair-climbing in the week prior to September 24, 2018 and that the tendinitis that manifested in the course of his employment on September 24, 2018 was the direct result of his work-related duties.

The worker advised the panel that in the week prior to September 24, 2018 his daily step count in the course of his workday had almost doubled, with an increase in related stair-climbing and weight-bearing as well.

The worker noted that after one week away from work he was able to return to modified duties and that after one week of physiotherapy he was fully recovered. He indicated that he has not had any issue with his right foot since that time.

In sum, the worker related the diagnosis of right foot peroneal tendinitis directly to the change in his workplace duties that began on or about September 17, 2018 and manifested in the sudden onset of pain in the course of his work on September 24, 2018. He stated that the claim should therefore be accepted.

Employer's Position

The employer was represented at the hearing by a member of its human resources staff who made oral submissions on behalf of the employer, provided the panel with a written submission and answered questions from members of the panel.

The employer's position is that the evidence does not establish that the worker suffered an injury resulting from an accident arising out of and in the course of his employment.

The employer pointed to the inconsistency in the worker's position that there was no traumatic event, but that there was a sudden onset of the injury on September 24, 2018. The employer further stated that the evidence does not support a finding that there was a gradual onset of injury or repetitive injurious motion, as would be required to find an accident under the provisions of the GECA.

The employer directed the panel to consider the physical demands analysis for the worker's position, as found on file. The employer indicated that the while the specific duties undertaken by the worker in the week prior to the injury were different, the general processes and practices were not substantially different and fell within the same physical demands categorization. The employer confirmed that the worker had been working within these physical demands since 2007.

The employer also queried whether the injury might be related to activities the worker was engaged in outside of work, noting that the worker told the WCB case manager on October 1, 2018 that he also participates in hockey and hiking and went on a hiking trip in the weekend prior to the reported injury.

In sum, the employer stated the evidence does not establish a clear causal link between the worker's injury and his employment and the claim should therefore not be accepted.

Analysis

In order for the panel to find that the claim is acceptable, it must determine that the worker was injured as a result of an accident that occurred arising out of and in the course of his employment. The panel is not able to make that finding.

The Policy requires that the definition of accident in the GECA will be given a broad interpretation. The worker and the employer both acknowledged here that there was no traumatic event. In the absence of a specific incident or traumatic event that could be identified as an accident arising out of and in the course of the worker's employment, the panel considered whether the injury here resulted from a gradual process or repetitive injurious motion that could be considered an accident under the provisions of the Policy.

The worker described to the panel a sudden onset of pain in the arch of his right foot while walking in the course of his employment. That pain, he stated, then radiated into his ankle and the rest of his foot. At first, he stated, he believed it was a cramp that would work itself out if he continued walking, so that is what he did, but within the block he found that the pain worsened such that he couldn't weight-bear on that foot. At that point, he said, he contacted his employer and advised that he could not complete his work and returned to his vehicle to go back to the work place.

The worker sought medical attention the same day from a walk-in clinic. The Doctor First Report from the treating physician noted subjective complaints of right foot pain since earlier in the morning and confirmed the worker's description of cramp-like onset. The physician noted mild swelling in the lateral side of the worker's right foot, tenderness at the 5th metatarsal base and peroneal tendon and pain on resistive aversion. The physician ordered an x-ray and prescribed rest, ice and avoidance of aggravating factors, with follow up in two weeks. The diagnosis at that time was stated as "right foot pain most likely peroneal tendonitis". The treating physician stated that the worker was capable of modified or alternate work with restrictions of "no long standing or walking, no heavy lifting or carrying, no walking on uneven area, no climbing stairs or ladders."

The results of the x-ray taken that day indicated that there was no observation of bone, soft tissue or articular abnormality.

The worker advised the panel that he returned to work the following day on light duties and that continued for approximately one week. The next Doctor Progress Report dated October 4, 2018

noted some improvement with continuing tenderness on the peroneal tendon and painful resistance eversion. There were no concerns noted as to recovery. Physiotherapy and home exercise were prescribed and follow up suggested in two weeks if there was no improvement. The worker confirmed to the panel that the referral to physiotherapy was made at his express request.

On October 9, the worker first was assessed for physiotherapy. At that time, the physiotherapist diagnosed right peroneus brevis tendinopathy and provided a home program for increasing strength. The physiotherapist recommended continued restrictions in terms of reduced walking with the balance of time spent on other standing duties.

While the worker attributed the "sudden onset" of tendonitis in his right foot to the accumulated effects of the increased walking and weight-bearing of the week prior to September 24, 2018, the evidence as a whole does not support that position. The worker's treating physician does not comment in either the September 24 or October 4 report as to whether the condition was related to a gradual process or a repetitive motion undertaken in the course of the worker's employment.

When the worker was assessed for physiotherapy on October 9, 2018, the subjective complaint noted is of intermittent pain in the lateral right foot and ankle, aggravated with prolonged walking and standing. There are objective findings of pain in the movement of the worker's right ankle and foot resulting in a diagnosis of right peroneus brevis tendinopathy. The mechanism of injury provided to the physiotherapist is of sudden onset on September 24, 2018 following one week of increased walking at work. The physiotherapist also does not make a link between the diagnosis and an injury resulting from a gradual build-up or repetitive motion.

Further, the panel noted the evidence of the worker that he went on an overnight hiking trip, packing in and out some 18 kilometers in each direction, over the weekend prior to the reported injury. The worker confirmed to the panel that he had no difficulties with his right foot during that activity, lending support to the employer's position that there was no evidence of a gradual onset of injury as would be caused by repetitive injurious motion or process.

The panel noted that the worker made his submission clearly and credibly answered the panel's questions.

The panel finds that the evidence, considered as a whole, is not sufficient to make a finding, on a balance of probabilities that the worker's diagnosis of right peroneus brevis tendinopathy was the result of an accident, namely a repetitive injurious motion or gradual process injury arising out of and in the course of his employment.

The claim is therefore not acceptable.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of September, 2019