Decision #90/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A videoconference hearing was held on June 14, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On September 23, 2021, the worker filed a Worker Incident Report with the WCB, reporting an injury to her left foot that occurred on September 2, 2021 and was reported to the employer on September 8, 2021. The worker described:
As I was walking on the road to stop traffic to let a company truck through I felt instant pain in my left heel.
I stand where the road is unfinished. It is soft to walk there and the ground is uneven.
I did fall at the time. It was my second day on the job. I finished my shift that day and I worked the Friday Sept 3. My foot was really sore by the time I finished my shift. I did not walk all weekend. I noticed swelling on the outside on my heel. I worked the entire shift on Tuesday Sept 7. By the end of the day I could barely walk. The Doctor took me off work Sept 8 - 17 inclusive. I tried working on Sept 20. I finished my shift but I was in a lot of pain. My Employer told me to take yesterday and today off…Now whenever I put pressure on my heel it hurts. The pain is shooting up my calf (about half way to the knee). Once in a while I get a throbbing pain in my heel.
The employer provided an Employer's Accident Report to the WCB on September 26, 2021. The employer detailed the worker's report to her supervisor of heel pain on September 8, 2021 for which she was seeking medical treatment. The employer noted the worker contacted them after seeking treatment at a local walk-in clinic, and advised that "The doctor said I have planter fascia (sic) in my heel, I can't put work boots on until he sees me again on the 15th, I have a doctors note…With therapy and inflammatory I should be healed in a week…" The employer further noted their concern that the worker had not reported a work-related injury to her supervisor or her treating healthcare provider.
The WCB received a Doctor's First Report with respect to the worker's attendance at a walk-in clinic on September 8, 2021, which noted the worker's complaints of left heel pain. The treating physician reported a finding of tenderness over the left calcaneal tubercle and recommended anti-inflammatory medication, stretching exercises, and icing. At a follow-up appointment with the walk-in clinic physician on September 14, 2021, similar reporting was noted and it was recommended the worker could return to work on October 18, 2021.
On September 27, 2021, the worker attended an initial chiropractic assessment where she reported walking and prolonged standing on an uneven surface caused extreme pain in her left heel. The chiropractor noted the worker's complaints of being unable to stop and walk without extreme heel pain, found point tenderness over the worker's subcalcaneal bursa with left calf pain and stiffness, and diagnosed the worker with left subcutaneous calcaneal bursitis. The chiropractor noted the worker was unable to perform her job duties and recommended sedentary duties for two weeks.
At an appointment with her family physician on September 30, 2021, the worker reported persistent left heel, ankle and left distal calf pain. The family physician noted continued tenderness over the medial tubercle of the worker's left calcaneus, mild left ankle joint line tenderness and no calf tenderness or tenderness at the site of the Achilles tendon to the calcaneum. An x-ray of the worker's left ankle and foot was noted to be normal and the worker was referred for physiotherapy.
On October 5, 2021, the worker attended an initial physiotherapy assessment, where she reported she had sharp pain in her left heel with weight bearing and throbbing pain when at rest. The physiotherapist noted the worker had an antalgic gait, was not weight bearing through her heel, and had positive test results. The physiotherapist diagnosed the worker with plantar fasciitis and Achilles tendinopathy.
On October 6, 2021, the WCB contacted the worker to discuss the claim. The WCB reviewed the Worker Incident Report with the worker, who confirmed the mechanism of the September 2, 2021 injury. The worker also confirmed she advised a co-worker on the day of the accident that she had a sore foot but had not reported the injury to the employer. The worker noted the treating walk-in clinic physician had placed her off work after she sought medical treatment on September 8, 2021, and she returned to work on September 20, 2021. The worker advised that she experienced an increase in the symptoms in her left heel after she returned to work on September 20, 2021, but did not report the injury to her supervisor before leaving work that day. The worker said she contacted a supervisor after work on September 20, 2021 to report an increase in her symptoms, with the pain having moved to her calf, and the supervisor told her to take the following day off work and rest. On October 6, 2021, the WCB also contacted the employer, who provided contact information for the worker's supervisor and co-worker.
On October 20, 2021, the WCB advised the worker that her claim was not acceptable. The WCB noted the worker's delay in reporting the workplace incident to her employer and the WCB, and in seeking medical treatment, and determined they could not establish the worker sustained an accident arising out of or in the course of her employment.
On November 1, 2021, the WCB received a further progress report from the worker's family physician with respect to an October 29, 2021 appointment. The physician noted the worker's complaints of left heel and ankle pain, and that the worker reported she slipped on rough and uneven terrain and twisted her ankle, but did not fall, and that she had left heel and ankle pain since then. The worker noted the ankle pain was improving, but the heel pain persisted. On November 3, 2021, the WCB advised the worker that the new report from her family physician had been reviewed, but there would be no change to their decision that her claim was not acceptable.
On November 30, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker noted she had been diagnosed with plantar fasciitis and Achilles tendinopathy, which were cumulative, repetitive strain type injuries, and that this was consistent with her job duties of standing for many hours and walking on uneven surfaces for the majority of her 11.5 hour shifts. On December 2, 2021, Review Office returned the worker's file to the WCB's Compensation Services for further investigation.
On December 6, 2021, the WCB received chart notes from the treating walk-in clinic physician for the worker's September 8 and 14, 2021 attendances. The September 8, 2021 chart notes recorded the worker's report of heel pain for "4 weeks," with no trauma being indicated. On December 8, 2021, the WCB advised the worker that new medical information had been received from the walk-in clinic physician and reviewed, but there would be no change to their decision that her claim was not acceptable.
On December 14, 2021, the WCB received a correction to the September 8, 2021 chart notes from the treating walk-in clinic physician, who noted that the reference to the length of time the worker reported having heel pain should be four days, not four weeks as previously indicated. On December 16, 2021, the WCB advised the worker that this correction was noted but their decision remained unchanged.
On December 24, 2021, the worker requested that Review Office reconsider the WCB's decisions, noting the walk-in clinic physician's clarification of when she first reported the onset of her symptoms. On January 12, 2022, Review Office determined that the worker's claim was not acceptable. Review Office found there was no description of a workplace incident in the treating walk-in clinic physician's reports and the worker had delayed reporting the incident to her employer. Review Office found that they were therefore unable to establish an accident occurred arising out of or in the course of the worker's employment.
On March 9, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and a hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies established by the WCB's Board of Directors. As the date of injury is identified as September 2, 2021, the applicable legislation is the Act as it existed at that time.
Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.
What constitutes an accident is defined in subsection 1(1) of the Act, 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,
(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.
WCB Policy 44.05, Arising Out of and in the Course of Employment states, in part:
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 by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from her representative, and both the worker and her representative responded to questions from the panel.
The worker's position was that she suffered an injury resulting from a hazard in the conditions of her employment and her claim should be acceptable.
The worker's representative submitted that one of the hazards of the worker's employment was that she was required to wear steel-toed boots, and the boots she wore were new, not properly fitted and not broken-in. Another hazard was that she was required to work 11.5-hour shifts on her feet, with little time to rest or recover from the pain she experienced. It was submitted that the main hazard that contributed to the worker's injury was the condition of the ground where she was working. The representative noted the worker was accustomed to being on her feet all day, albeit for shorter shifts, but that was on floors, and the uneven ground she was working on in this job was completely different.
In response to questions from her representative, the worker described the ground she was working on in more detail, noting that:
Half of the road was paved. The other half where I stood waiting for the vehicles was unpaved, which was about a foot and a half deep down in the ground. It was soft, uneven, large chunks of cement, so, I was constantly dodging hazards as I was waiting…
The ground that I was walking on was uneven, unfinished road that had been dug up. It was down about a foot and a half lower from the regular pavement cement. There was (sic) large pieces of cement. In some parts, there was rebar sticking out on one side, but I stayed away from that part. Very uneven, soft, rugged terrain.
The worker stated that she was able to sit down at points, but noted that:
It was fairly busy. I did get a chance to sit, like every - - it wasn't long, maybe every 15 minutes for a minute or so, I was able to rest. And then, I'd have to get back up again and redirect traffic or allow a vehicle to come through.
Asked when she started feeling the foot pain, the worker said it was "the morning of September 2nd, my first regular duty shift." She stated that:
…as I was stepping up onto the paved section that wasn't being done yet, there was a slight slant and my foot had slipped, and when I lifted it to finish my step, that is when I felt the pain. And I kind of stumbled, but I continued on.
The worker described the pain as being right under and around the back of her heel, and that it was "excruciating…like, somebody was taking a knife and cutting my foot off."
The worker's representative submitted that the risk factors for plantar fasciitis as listed in medical literature they had provided in advance of the hearing included walking in abnormal patterns, such as on uneven or shifting ground, being on one's feet for long periods of time, and performing movements which stressed ligaments or tendons. The representative submitted that all of these risk factors were present in the worker's employment, and showed that her new job posed a large risk for the development of the worker's diagnoses of both plantar fasciitis and Achilles tendinopathy.
The worker's representative noted that in any event, the issue was claim acceptance, which does not require a specific diagnosis, only that there be evidence of an injury. The representative submitted that the evidence showed the worker arrived at work on September 2, 2021 with no foot problems or symptoms, worked 11.5 hours on her feet on uneven ground with new ill-fitting boots, and left work with foot pain. It was noted that the worker remembered that at one point she stumbled, but did not fall, adding that the indication in the Worker Incident Report that she fell was a typographical error. The representative noted that within a couple of shifts the worker's pain had not only increased, but her foot had begun to swell near the heel as well, and submitted that the evidence was sufficient to accept the claim without a specific diagnosis.
With respect to any delay in reporting, the worker's representative submitted that the worker suffered pain on her first day of regular duties, and it was reasonable to assume she did not wish to report an injury to her employer at that time. It was also reasonable for the worker to assume it was not unusual to experience foot pain after working an 11.5-hour shift, and that the pain would subside once she was off her feet and able to rest. The representative noted that when the pain did not subside, but increased, the worker sought medical attention and reported the injury. It was submitted that a six-day delay was not unreasonable or a sufficient reason to deny the claim, especially as the worker was resting for three of those days.
In conclusion, the worker's representative submitted that the evidence was clear that the worker was working at a job with long hours, on uneven ground and in ill-fitting work boots. It was submitted that the sudden increase in hours and hazardous conditions could contribute to her risk of injury on the job, and that in the circumstances, the criteria for claim acceptance were met, and the worker should be entitled to medical aid and wage loss benefits.
The employer was represented by an advocate, who participated in the hearing by teleconference. The advocate made an oral submission and responded to questions from the panel.
The employer's advocate advised that the employer basically agreed with the WCB and Review Office decisions that the worker's claim was not acceptable.
It was submitted that the evidence did not support the worker's medical condition of plantar fasciitis was related to her work duties. The advocate noted that plantar fasciitis is a condition which generally develops over time, yet the worker had indicated the injury occurred on her first regular day of employment. It was noted that no specific incident was identified as having occurred at work to cause the worker's injury; the worker only worked three days out of six, as she had three scheduled days off during that time; and the worker did not report her injury promptly to the employer.
In conclusion, it was submitted that the evidence did not link the worker's plantar fasciitis to duties the worker performed for less than one week, and the worker's claim should not be accepted.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of her employment. The panel is unable to make that finding, for the reasons that follow.
While the worker has been diagnosed with plantar fasciitis and Achilles tendinopathy, the panel is unable to find that these diagnoses are causally related to the worker's job duties or a workplace incident.
In arriving at that conclusion, the panel notes that it is our understanding that plantar fasciitis and Achilles tendinopathy are generally considered to be repetitive strain-type injuries. The worker's evidence, which she confirmed at the hearing, was that she first experienced symptoms at approximately 9:30 a.m. on September 2, 2021, or 2½ hours into her first day performing her regular duties. The worker worked one more shift after that, was away from work for three scheduled days off, then worked one more shift before reporting difficulties with her left heel and seeking medical attention. The panel is not satisfied that the worker's performance of her job duties, as described, for 2½ hours, or over a total of three days, with a three-day break in between, would have resulted in plantar fasciitis or Achilles tendinopathy.
The panel also notes that when asked at the hearing whether it was their contention that the worker suffered a repetitive strain injury while working for the employer, the worker's representative acknowledged that it was hard to say that a repetitive strain occurs within such a short period of time, stating:
It is our contention that she suffered an injury to her foot to her plantar fascia, as well as her Achilles tendon. Whether or not you consider that a repetitive strain, hard to say a repetitive strain occurs within, you know, one to two days, but given that she had never had any of these sort of movements in steel-toed boots in uneven ground and the whole grasping that you might do through the toes when you're moving in boots that might be sliding especially on the uneven ground when you're trying to keep your balance of things. I can see there being an injury to any type of a tendon or ligament in that condition, you know, 11.5 hours, and apparently her physicians felt so as well. So, that is our contention. Whether you consider that a repetitive strain after two days or whether you consider that an acute injury of the plantar fascia.
The panel is unable to accept the further suggestion, as outlined above, that the claim should be accepted as an acute injury to the plantar fascia or Achilles tendon. The panel notes that while the worker referred in her Incident Report, and at the hearing, to having slipped at work on September 2, 2021, she did not seek medical attention or report an injury to her employer until six days later. The evidence further shows that in reporting her injury, the worker did not advise the employer that it was work-related, and did not file her Incident Report with the WCB until September 23, 2021.
The panel also notes that the early medical reports from the worker's treating healthcare providers do not refer to a workplace incident or acute injury having occurred. Rather, the September 8, 2021 chart notes from the treating walk-in clinic physician specifically indicate that there was "No trauma…" and the early medical reports from the other treating healthcare providers are either silent in this regard or provide a "description of incident or injury" of walking and standing on an uneven surface. The Employer's Accident Report of September 26, 2021 further notes that the worker did not report any type of workplace incident having occurred. In the circumstances, the panel is unable to find that the worker suffered a left foot injury or plantar fascia as a result of her employment.
In conclusion, the panel finds, on a balance of probabilities, that the worker did not suffer personal injury by accident arising out of and in the course of her employment. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of August, 2022