The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker’s claim is acceptable. A teleconference hearing was held on December 8, 2020 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The employer filed an Employer’s Accident Report with the WCB on March 4, 2020 indicating the worker injured her right foot in an incident at work on February 20, 2020. Attached to the Report was a copy of the investigation report completed by the employer. It noted the worker reported performing her job duties on February 20, 2020 when she “…felt a sharp snap on the outside of her right foot” while walking. Further, it was noted “she was walking on flat surface and was wearing her cleats, [the worker] said she did not slip, trip or twist her foot as she was walking in a straight line…” The incident was reported to the worker’s supervisor who inspected the site of the workplace accident and took photographs. The worker continued with her duties but left work early for medical treatment. The report further noted the worker returned to work the following day, February 21, 2020, on modified duties.

The worker was seen at a local walk-in clinic on February 20, 2020. No diagnosis was provided however the physician noted pain on palpation of the lateral portion of the worker’s right foot and referred the worker for an x-ray. The right foot x-ray indicated “…a small accessory ossicle…” along the lateral aspect of the foot and a “…subtle fracture…could not be excluded.” On February 21, 2020, the worker was seen at another clinic and was diagnosed with a “small fracture ossicle lateral foot” and completely sedentary, non-weight bearing activities were recommended as a restriction. The worker was seen by her treating family physician on March 2, 2020 who referred the worker for an orthopedic consultation and recommended non-weight bearing work duties until that time.

On April 7, 2020, the worker’s file was reviewed by a WCB medical advisor. The advisor opined the worker’s diagnosis was a “…possible fracture of an accessory ossicle in the lateral foot” supported by the worker’s reported area of pain and the x-ray results. The WCB medical advisor went on to provide that an accessory ossicle was “…like a small extra bone that some people have” which can occur in different areas; the ossicle would not cause symptoms but could be injured like other parts of the body. In the worker’s case, it was noted the ossicle was in the lateral foot and was possibly irritated from repetitive pounding of her foot while walking. Conservative treatment was normally recommended with recovery in 6 to 8 weeks. It was noted surgery is sometimes required. The worker was advised by the WCB on April 16, 2020 that her claim was not acceptable as it could not be established her current symptoms were related to her work duties. The WCB determined a specific event was not identified and walking was considered an activity of daily living, done both during work and after.

The worker requested reconsideration of the WCB’s decision to Review Office on April 24, 2020. In her submission, the worker noted her belief that the physicality of her job duties and the elements she worked in contributed to her workplace injury and as such, she should be entitled to benefits. The employer provided a submission in support of the WCB’s decision on May 27, 2020, a copy of which was provided to the worker.

Review Office found the worker’s claim was acceptable on June 2, 2020. Review Office accepted and placed weight on the WCB medical advisor’s opinion of April 7, 2020 that an accessory ossicle in the worker’s lateral foot could have gotten irritated by the pounding of her foot during lots of walking, which was consistent with the worker’s description of the mechanism of injury and included in her job duties. Further, Review Office could not find any evidence to support the worker’s injury was caused by an activity outside of her job duties.

The employer filed an appeal with the Appeal Commission on July 15, 2020. A teleconference hearing was arranged for December 8, 2020.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, her claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Accident" is defined in section 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Pursuant to paragraph 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 who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of the Act, regulations under that Act and the policies established by the WCB's Board of Directors. The Act sets out the definition of an accident in s 1(1) as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured….

Policy 44.05 states, in part:

A. GENERAL INFORMATION

Under The Workers Compensation Act, benefits and services are available to workers who suffer a compensable workplace injury or illness. To be compensable, it must have been the result of an accident arising out of and in the course of the worker’s employment.

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. 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.

The Workers Compensation Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.

Employer’s Position

The employer participated in the hearing through their representative who submitted the employer’s position and answered questions from the panel.

The employer’s position is that the worker’s claim should not be accepted as it cannot be established that her injury arose out of her employment duties.

The employer’s representative reviewed the events that transpired on the date of the worker’s injury. She noted that the worker felt a snap in her right foot while walking outdoors in the course her employment duties. The employer’s representative noted that there was nothing extraordinary on that date with respect to weather or the worker’s job duties.

The employer’s representative stated:

And noted in the WCB file information, [the worker] herself, reported that the pavement was wet but not slippery or icy, and there was no hazard.

She was not stepping down from an elevated surface, she was walking straight onto pavement. So there’s no traumatic incident, accident or event that occurred that day.

The employer’s representative submitted that the employer’s assertion was also confirmed by the worker's own reporting as it was noted that while the worker reported experiencing pain on the date of the injury, “…she did not report any type of traumatic incident, accident or event to account for this pain.”

The employer’s representative stated that while walking is a key demand in the worker’s duties, workers are also required to walk in their lives outside of work.

The employer’s representative summarized their position on this issue as follows:

From our perspective, because of this it cannot be determined that there is a cause and effect relationship between [the worker’s] foot fracture and her employment, and any other type of determination is simply speculative.

The employer’s representative noted that the WCB medical advisor provided an opinion as to the types of situations that can give rise to the type of injury that the worker reported. She noted that the WCB medical consultant’s report stated that the injury could be caused from a direct blow to the lateral foot, a fall from a height or from an inversion ankle injury. The employer’s representative also noted that the WCB medical advisor stated that “…it could also get irritated from repetitive pounding of the foot as in a lot of walking, running or jumping.” In response to the medical opinion provided by the WCB medical advisor, the employer’s representative stated:

There is no part of a [worker’s] job that involves heavy strikes of the foot in unchanging repetition during the work day.

The employer’s representative reviewed the various job duties of the worker’s employment and some of the safety rules in place for that job. The employer’s representative advised the panel that there was no breach of the employer’s safety protocols by the worker. The employer’s representative submitted the possible causes of the worker’s injury that were outlined by the WCB medical advisor in her April 7, 2020 report were not present when the worker sustained her injury on February 20, 2020. Therefore, the worker’s injury cannot be related to her employment activities.

Upon questioning from the panel members, the employer’s representative confirmed that the worker experienced an injury to her right foot on February 20, 2020 in the course of her employment. However, the employer’s representative stated that the injury did not arise out of the worker’s employment and that the injury was not causally related to the worker’s employment.

The employer’s representative stated:

It is my understanding that generally where an injury or illness is said to have arisen out of employment, there needs to be a hazard or something to causally connect that injury to the employment. We don’t see that. We just don’t see that there was something that caused it.

In summary, based on the available information, the employer’s representative submitted that the worker’s claim should be denied.

Worker’s Position

The worker participated in the hearing and was represented by a worker advisor. The worker advisor presented the worker’s submission to the panel and the worker answered questions posed to her by the worker advisor as well as from the panel.

The worker advisor commenced her submission by stating the following:

It is our position that the worker suffered an injury that arose out of and in the course of employment. As a result of that injury, the worker suffered a loss of earning capacity and required medical aid benefits.

The worker advisor reviewed the duties of the worker’s job and explained that part of the worker’s employment involves walking approximately 16 kilometers each day of work while carrying material that varied in weight throughout her workday. The worker explained that, due to the time of year that that injury occurred, she was wearing winter footwear as well as cleats on her footwear. The panel was advised that the worker was near the end of her scheduled route when she felt a sharp snap in her foot. The worker advisor noted that the worker felt immediate pain and had to limp the remainder of her route.

The worker described the injury as occurring when she was walking down a gravel driveway and turned onto a paved street and she felt a very sharp snap in her right foot. The worker confirmed that she was carrying material when she felt the injury in her foot.

The worker advisor stated:

We submit the evidence shows that the accident shows (sic) occurred at a very specific point in the course of her employment that day. It was evident there was no symptoms prior to the shift. By contrast, she was unable to walk without limping at the end of her shift.

The worker advisor stated that walking approximately 16 kilometers per shift would meet the definition of excessive amount of walking. Further, she stated that the amount of walking that the worker was required to do during her shift would be considered to be a condition of, or a hazard to, the specific type of employment that the worker performed.

The worker advisor summarized her presentation by stating that the worker had an accident in the course of her employment. She stated that the worker had no symptoms prior to her shift and she had a definite snap in her foot and the onset of symptoms near the end of her shift.

The worker advisor submitted that the WCB medical advisor confirmed the type of injury the worker sustained could have been caused by excessive walking. The worker advisor also submitted that the worker is required to carry material that varied in weight while walking between 80 to 90 kilometers per week.

The worker advisor concluded her submission as follows;

There is a presumption in legislation that if an injury occurs in the course of employment, it is presumed to have arisen, arose out of the employment unless the contrary can be proven.

There has been no evidence of an alternate explanation that is not work related on how the worker was injured.

Because the accident happened in the course of employment and the medical opinions indicate it arose out of the conditions of employment, the claim is acceptable.

Analysis

The employer has appealed the WCB’s decision that the worker’s claim for an accident that occurred on February 20, 2020 is acceptable. In order to find in favour of the employer, the panel would have to determine that the worker’s claim for her accident was not acceptable. The panel is unable to make such a determination for the reasons that follow.

The panel notes that both parties are in general agreement with respect to the events that transpired on February 20, 2020 and that the worker injured herself while in the course of her employment. There appears to be little dispute that the injury 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" as defined under Policy 44.05.

The panel notes that the definition of an accident under Section 2 of the GECA is, "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

The panel accepts that the worker’s injury in this instance meets the definition in Section 2 of the GECA as it was a "fortuitous event occasioned by a physical or natural cause." and the result of which the worker was injured.

With respect to the issue whether the worker’s injury arose out of her employment as defined under Policy 44.05, the panel notes that the policy states, in part, the following:

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 this instance, when the worker was injured, she was performing her regular employment duties which involved walking an extensive distance while carrying a load that varied in weight throughout the walk. As a result, the panel finds that worker’s injury would also meet the definition set out in Policy 44.05 for an injury to have occurred in the course of employment, as the injury “… 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.” Based on the evidence, the panel finds that the worker’s injury meets the criteria outlined in Section 4.1(a)(i) of the GECA and she would be entitled to compensation for that injury.

As part of their presentation at the hearing, the employer also submitted that since there was no hazard to causally connect the worker’s injury to her employment, then the injury did not arise out of her employment. The panel understood the employer’s submission to be that a hazard of employment should be interpreted as an action or event that was outside the normal circumstances of a worker’s employment. The employer’s representative highlighted that the worker was not walking on an icy surface, she was following appropriate safety protocols and that there was nothing extraordinary on the date of the injury with respect to weather or the worker’s job duties. The panel does not accept the employer representative’s interpretation of the policy and legislation, as to do so would result in substantially limiting the broad definition of an accident provided for in Section 2 of the GECA.

The panel also considered and places weight on the opinion provided by the WCB medical advisor on April 7, 2020 which states, in part:

…

2. An accessory ossicle is like a small extra bone that some people have. It can occur in different areas. In most cases, the ossicle doesn't cause symptoms, but it can be injured just like other body structure. 

In this case, the ossicle is in the lateral foot. It could get injured from a direct blow to the lateral foot, a fall from a height, or from an inversion ankle injury. It could also get irritated from repetitive pounding of the foot as in lots of walking, running, or jumping. 

…

The panel accepts the WCB medical advisor’s opinion regarding this injury and accepts that, at the time of the injury, the worker was engaged in extensive walking while carrying various amounts of weight that reasonably would have caused the injury described. The panel finds that the above noted medical opinion further supports that the worker’s employment activities on February 20, 2020, resulted in an injury under the GECA.

The employer’s appeal is dismissed.

Panel Members

M.L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. Kernaghan - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of February, 2021