Decision #70/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim was not acceptable. A teleconference hearing was held on May 13, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The employer submitted an Accident Report to the WCB on November 28, 2016 indicating the worker reported on November 25, 2016 that they injured their feet at work on November 19, 2016. The Report noted the worker had fallen arches and reported that they developed pain in their feet from walking on an uneven surface at work. The worker advised the employer they had attended at a local hospital and was provided with restrictions of no ladders, stairs or walking.
The WCB attempted to contact the worker for further details on their claim and on February 13, 2017, the worker provided a Worker Incident Report to the WCB. The worker reported injury to their right foot at work occurring on August 7, 2016. The worker reported:
My arches were aching and there was some pain. As well as my shins and calves. My right foot started feeling numb around the instep. It feels like there is lump (sic). If I move it a certain way there is a slight pain. Pain is mostly localized to my right foot. Left foot is just muscle strain.
In November I was walking down a ladder and when I hit the landing with my right foot I felt instant pain in the arch of my right foot. There was a pain running up the side of my calf and it cramped up.
Medical information provided to the WCB on February 13, 2017 and February 15, 2017, included a hospital report from July 29, 2016 indicating the worker reported a two-week history of right ankle pain and was diagnosed with an ankle/foot soft tissue injury as well as an x-ray of the worker’s right ankle and foot indicating “Mild osteoarthritis is suspected at the mortise joint particularly anteriorly. No fracture or dislocation is identified of either foot or ankle…”. Walk-in clinic chart notes dated August 10, 2016 and August 23, 2016 indicate the worker did not report their right foot pain being related to work or any specific incident that occurred and that there was no swelling or redness noted, with a diagnosis of soft tissue injury. A further hospital report from November 26, 2016 indicated the worker’s report of a right foot twist injury one week prior and provided a diagnosis of foot sprain and plantar fasciitis.
On May 10, 2017, a WCB medical advisor reviewed the medical information in the worker’s claim file and provided an opinion that the information “…substantiates only a diagnosis of non-specific right foot pain.” Further, the WCB medical advisor noted a relationship between the worker’s job duties and right foot difficulties could not be established as there was not a clear diagnosis and no repetitive mechanism of injury was identified. The WCB medical advisor further noted that the July 29, 2016 x-ray revealed a pre-existing degenerative condition of mild osteoarthritis, but there were no medical findings to support that this pre-existing condition was altered or aggravated. The WCB advised the worker on May 24, 2017 that their claim was not accepted based on a review of the medical information.
On December 14, 2017, the WCB received a November 10, 2017 right foot/ankle MRI study report that indicated:
“1. Mild degenerative changes involving the central – medial aspect of the talar dome, possible secondary to previous osteochondral injury in this location.
2. Thinning of the anterior talofibular ligament, likely representing previous partial thickness injury.
3. Dorsal spurring at the dorsal aspect of the proximal talar neck…”
A WCB medical advisor reviewed the MRI study report on January 19, 2018 and provided an opinion that the findings were degenerative in nature and did not establish any relationship between the worker’s difficulties and their job duties. On February 5, 2018, the WCB advised the worker there would be no change to the previous decision that the claim was not acceptable.
On May 1, 2018, the worker submitted further medical information. A January 16, 2018 referral letter from the worker’s treating orthopedic specialist to an orthopedic surgeon, noted “…some mild articular change on the medial tibial dome and thinning of the anterior talofibular ligament” and requested consideration be given to arthroscopic surgery and debridement. Also included was a January 17, 2018 report from the orthopedic specialist referencing the worker’s broken left wrist and an April 12, 2018 report also from the specialist indicating the worker would be referred to a foot and ankle specialist.
On May 3, 2018, the WCB advised the worker that the new medical information was reviewed and there would be no change to the earlier decisions their claim was not acceptable. The worker provided a July 5, 2018 report from the treating foot and ankle specialist to the WCB on July 10, 2018. This report provided a diagnosis of arthritis/instability in the right ankle joint and noted the worker sustained a work-related injury in 2016 and would require surgery with a 5 - 6 month rehabilitation period after the surgery.
On July 9, 2018, the WCB again advised the worker that the further medical information submitted did not provide any new evidence to support their claim and the decision remained unchanged.
The worker requested reconsideration of the WCB’s decisions to Review Office on November 8, 2018. The worker provided a chronology of their claim and submitted they continued to experience difficulties with their foot. On November 22, 2018, Review Office found the worker’s claim was not acceptable, relying upon the medical opinions on file that the worker had a pre-existing degenerative condition which Review Office acknowledged would have caused the worker pain; however, the file evidence did not support the worker sustained an accident arising out of or in the course of their employment.
The worker’s representative requested Review Office reconsider their decision on May 28, 2019. The representative presented the argument the worker sustained a foot sprain while performing their job duties as evidenced by the hospital report dated July 29, 2016 and the worker’s report of the injury to their supervisor. On June 26, 2019, Review Office again determined the worker’s claim was not acceptable, noting the worker’s representative’s submission that the worker sustained a sprain/strain type injury, but that the medical information from the orthopedic specialist indicated the worker was being referred for consideration of arthroscopic debridement of their ankle due to issues with arthritis, a different medical condition than a sprain/strain injury.
On June 27, 2019, the worker’s representative submitted a medical report from a physician with an interest in occupational medicine dated June 25, 2019 and requested Review Office reconsider their earlier decision. The June 25, 2019 report provided details of the medical treatment provided to the worker by their various healthcare providers and provided the opinion the worker had a “…fairly consistent history of predominantly right-sided ankle and foot pain and instability associated with walking on uneven surface…” and attributed the worker’s right foot difficulties to their job duties aggravating their pre-existing degenerative ankle joint and a November 2016 twisting incident.
Review Office determined on September 3, 2019 that the worker’s claim was not acceptable. While Review Office accepted that the worker reported pain while performing their job duties, in particular, while climbing on ladders and walking on uneven surfaces, it found the evidence did not establish that an accident occurred. Review Office also noted the medical evidence supported the worker had pre-existing degenerative changes in their right ankle/foot area which were not enhanced by an accident but related to natural progression of a degenerative condition.
The worker’s representative filed an appeal with the Appeal Commission on October 9, 2019 and a teleconference hearing was arranged for May 13, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. The Act defines an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment and any thing that is done and the doing of which arises out of, and in the course of, employment.
The WCB has established Policy 44.05, Arising Out of and in the Course of Employment to provide guidance on how it will determine whether an injury arose out of and in the course of employment. The Policy sets out that 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 worker was represented in the hearing by a worker advisor, who made a submission on behalf of the worker, and addressed questions to the worker. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.
The worker’s position is that the worker’s claim should be accepted as the evidence supports that the worker sustained injury as a result of participation in their workplace activities, including injury to their right foot and ankle caused by walking on rebar, and a sprained ankle/foot resulting from stepping awkwardly down from a too-high ladder step. These injuries occurred arising out of and in the course of the worker’s regular daily work activities and as such, meet the definition of accident under the provisions of the Act; therefore, the worker’s claim should be accepted because the worker was injured as a result of an accident at work.
The worker’s advocate argued that the worker’s claim was inadequately investigated by the WCB, noting there were no queries addressed to the employer with respect to the worker’s report of injury during the summer of 2016, as outlined in the medical reporting. Further, the worker advisor noted that although the worker indicated they reported injury to the employer’s site safety officers in the summer of 2016, there is no indication that the WCB sought any information from the employer as to these prior reports.
The worker advisor pointed the panel to consider the medical reporting and findings regarding the worker’s July and August 2016 assessments, noting these confirm the worker’s right foot was injured and that the worker had pain, swelling and bruising on July 29, 2016, and complained of a twist injury to their heel and arch in August 2016. Further, the medical reporting from November 2016 confirms the worker’s report of a twist injury on landing when stepping off a ladder at work.
The worker described to the panel their job duties in the summer and fall of 2016, as well as the mechanism of injury in November 2016. The worker indicated that the November injury caused an increase in symptoms in their right foot, and that those symptoms had not fully resolved since they first became problematic in July 2016.
The worker advisor noted that although the report from the physician with an interest in occupational medicine outlined the link between the worker’s diagnosis of plantar fasciitis and their work duties, the worker’s position is that the only diagnoses related to the workplace activities are a right foot strain, arising in July 2016 and a right foot and ankle sprain resulting from the misstep off the ladder at work in November 2016. The worker advisor pointed to the November 26, 2016 medical reporting as evidence that the primary diagnosis was of a foot sprain, with a secondary diagnosis of plantar fasciitis. The worker advisor relied upon the report of the physician with an interest in occupational medicine as confirmation that the worker’s November 2016 right ankle injury would have enhanced the worker’s right foot instability which resulted from the injury in July 2016.
In answer to questions from panel members, the worker confirmed their use of steel toed boots on the job site and further, that in 2016, they also began wearing a right foot brace while working. The worker indicated to the panel that they advised both a union representative and a health and safety officer of their November injury, and filled out an incident report with the health and safety officer. The worker described how walking on rebar is challenging, especially when turning or changing direction, and requires that you put weight on the arches of your feet. The worker noted they would spend 4-6 hours daily standing and walking around on rebar. While there are walkways available, those walkways are uneven, and safe remote operation of the equipment required the worker to step off the walkways to maneuver around pillars and towers from time to time.
The worker advisor submitted that the diagnosis of plantar fasciitis is not related to the worker’s accident but is a non-compensable pre-existing condition, that may have enhanced or exacerbated the effect of the right foot injuries sustained by the worker in July and November 2016. The initial injury occurred in July 2016 and was subsequently worsened by a sprain that took place in November 2016, both in the environment of the worker’s pre-existing plantar fasciitis.
In sum, the worker’s position is that the evidence supports that the worker sustained right foot/ankle injuries in July and again in November 2016 arising out of and in the course of undertaking their regular work activities. Therefore, the claim should be accepted.
The employer was represented in the hearing by its workers compensation case manager, who provided an oral submission to the panel on behalf of the worker and answered questions posed by members of the appeal panel.
The employer’s position is that the worker’s claim should not be acceptable as the evidence does not support that the worker’s right foot difficulties arose out of their employment activities. Rather, the employer submits that the worker’s right foot difficulties are the result of a pre-existing and non-compensable degenerative condition.
The employer’s representative confirmed the worker was employed from July 2015 until November 2016. From October 2015 the worker’s position was as operator of a particular machine, which included driving and positioning it as well as operating it by remote control. In this capacity, the worker would not have been required to walk extensively on rebar at the job sites as wooden plank pathways are built for workers to traverse the site.
The employer’s representative noted that the employer first became aware of the worker’s foot complaints at the end of November 2016, when the worker advised they were going home as their feet were sore and indicated their intention to make a claim for Workers Compensation benefits. The employer was not made aware of any specific incident in which the worker twisted their ankle in November 2016, nor was the employer made aware of any injury to the worker’s foot in July or August 2016. There was no other incident report other than that received in November 2016 and provided by the employer to the WCB.
On questioning by panel members, the representative confirmed that the employer took the worker’s report of injury on November 25, 2016, and based on that information, the representative submitted the Employer’s Report to the WCB on November 28, 2016.
In sum, the employer’s position is that the evidence does not support a finding that the worker was injured as a result of an accident at work, and therefore the claim should not be accepted, and the worker’s appeal should be denied.
The issue for determination on appeal is whether the worker’s claim should be accepted. In order to grant the worker’s appeal, the panel would have to determine that the worker was injured as a result of an accident at work. The panel was not able to do so, as outlined in the reasons that follow.
The Act defines an accident broadly as including events arising out of and in the course of employment and anything that is done and the doing of which arises out of, and in the course of, employment, and as a result of which a worker is injured. In considering whether there was an accident, as defined by the Act, the panel considered the information in the file, including the worker’s statements to the WCB and the employer, medical histories provided and the evidence in the hearing. This evidence is summarized as follows:
• July 29, 2016 outpatient and emergency report form record indicates the worker attended with a two-week history of right ankle pain, with swelling and bruising. There is no indication of any cause or event work-related or otherwise;
• August 10, 2016 walk-in clinic chart note references the worker “having pain on R foot for 2 weeks – works with concrete and walk on top of re/bar and work on heavy machines – thinks [they] twisted [their] heel and arch – no direct trauma that can remember”;
• August 23, 2016 medical chart note references the worker was seen for the first time “with right foot strain last month, for which [the worker] was on leave” and goes on to repeat the worker’s August 10, 2016 comments regarding a possible twist injury, but no direct trauma and records the worker’s request for a note to permit return to work;
• November 26, 2016 outpatient and emergency report form indicates worker sought medical attention for a right foot “twist injury” that occurred 1 week prior;
• November 28, 2016 Employer’s Accident Report notes that worker reported “fallen arches”, “tried walking on rebar”, their “feet are sore” and have pains in their feet, went to the hospital and was given restrictions of no ladders, stairs or walking and was told they may have flare ups for up to one year;
• December 8, 2016 walk-in clinic chart note references the worker attending with a complaint of “right foot pain since [November], had it in summer, says started after walking on steel, no known injury”;
• January 20, 2017 diagnostic imaging report indicates the worker’s clinical history of “Pain in medial border right foot, no known injury”;
• February 13, 2017 Worker Incident Report sets out that the worker spends their “days walking on rebar. We are on our feet 12 hours a days (sic). On rebar for approximately 6 to 8 hours per day.” The worker reported first noting symptoms in July 2016, stating “My arches were aching and there was some pain. As well as my shins and calves. My right foot started feeling numb around the instep. It feels like there is lump (sic). If I move it a certain way there is a slight pain. Pain is mostly localized to my right foot. Left foot is just muscle strain. In November I was walking down a ladder and when I hit the landing with my right foot I felt instant pain in the arch of my right foot. There was a pain running up the side of my calf and it cramped up.”
In the hearing, the worker testified that they spent 4-6 hours daily walking and standing around on rebar. While there are walkways available, the walkways are uneven, and safe remote operation of the equipment required the worker to step off the walkways to maneuver around pillars and towers. The worker indicated they had been doing this kind of work for about three years. The worker also testified that in November 2016 they twisted their right foot on landing when stepping down some 4 feet from a ladder rung on the equipment they operate. The worker explained that this was due to a flaw in the design of the machine, when positioned in certain ways and not due to any damage or lack of repair. The twist caused swelling which led the worker to seek medical attention on November 26, 2016.
The worker’s position is that as a result of the worker undertaking their regular work duties, which include walking on rebar, the worker caused injury to their right foot in the summer of 2016, and that this foot was further injured in November 2016 when the worker twisted their right foot in dismounting from a ladder on the equipment the worker operated.
The employer’s evidence is that there was no report of any work-related injury occurring in July or August 2016, and further, that the worker did not, in November 2016, report they injured their right foot/ankle arising out of a twist or turn on descending a ladder on the equipment.
The panel accepts the employer’s evidence in this regard. There is no evidence that the worker made any contemporaneous report of an accident or injury to the employer in summer 2016. Further, with respect to the November injury, there is evidence the worker did not report to the employer that the foot pain they were experiencing on November 25, 2016 arose out of an injury that occurred on descending a ladder one week earlier, although they reported to the attending physician on November 26, 2016 that it was the result of a twist injury from one week prior.
The panel found the worker to be a poor historian, challenged in recalling and relating details of their claim to the panel. The worker’s evidence was inconsistent and unclear and does not align with the medical reporting. With respect to the worker’s position that the injury first arose as a result of walking on rebar at work in the summer of 2016, the panel notes that the worker did not provide such a history to the hospital on seeking treatment on July 29, 2016. On their next attendance for treatment on August 10, 2016, the medical records indicate the worker may have twisted their foot while walking on rebar but could not recall any direct trauma. The panel notes that the employer’s report in November 2016 outlines a mechanism of injury inconsistent with the worker’s evidence before the panel and with the history the worker provided to the attending physician one week after the purported twist injury, which makes no mention of any ladder descent causing the strain. Not quite two weeks thereafter, the worker sought further medical attention noting the foot had been sore since November but denying any specific injury. In light of the inconsistencies in the worker’s evidence and injury reports, the panel gives less weight to the worker’s testimony in determining whether the worker was injured as a result of an accident arising out of their employment.
The panel finds that the evidence as a whole does not support the worker’s position that the injury to the right foot sustained in July 2016 did not resolve and was then exacerbated by a further injury in November 2016. The medical reporting confirms the worker sought medical approval to return to work on August 23, 2016, and the file records confirm that the worker continued to work their 21 days on and 7 days off schedule from that point until going off work as of November 27, 2016. There is no evidence that the worker sought or required any additional medical attention during this three-month period, or that they continued to experience any symptoms relating to a July 2016 injury.
In this case, the panel placed little weight on the opinion of the physician with an interest in occupational medicine consulted by the worker, noting the worker’s position that the physician incorrectly related the worker’s diagnosis of plantar fasciitis to the workplace activities. Further, the panel finds that opinion of the physician with an interest in occupational medicine is largely based upon the history provided by the worker, which does not accord in all respects with information contained in the WCB claim file.
The panel considered as well the WCB physiotherapy advisor’s opinion of January 19, 2018, that the worker’s November 10, 2017 right foot and ankle MRI study reveal degenerative findings with a possible remote trauma injury. The advisor concluded the MRI findings may account for the worker’s reported symptoms but “would not be accounted for in relation to the reported work duties.” The WCB physiotherapy advisor, in the May 10, 2017 opinion concluded that the medical information on file “substantiates only a diagnosis of non-specific right foot pain” noting that “there is no reported definitive MOI” (mechanism of injury) and the evidence does not establish a “well-defined repetitive mechanism” of injury that would provide an occupational cause or explanation for the worker’s diagnosis. The panel accepts and agrees with this conclusion. The evidence before us does not support a finding that the worker sustained a repetitive-type injury arising out of and in the course of undertaking their work duties, and further, that the evidence does not reveal any definitive mechanism of injury to account for the worker’s non-specific right foot pain.
On the basis of the evidence before us, the panel is not able to determine on a balance of probabilities that the worker sustained an injury as a result of any accident occurring arising out of and in the course of their employment. In the result, the panel concludes that the claim is not acceptable and the worker’s appeal is denied.
K. Dyck, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of June, 2021