The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 17, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 17, 2000.

Issue

Injury date: June 3, 1998 - Whether or not the claim is acceptable.

Injury date: June 12, 1998 - Whether or not the claim is acceptable.

Decision

Injury date: June 3, 1998 - The claim is not acceptable.

Injury date: June 12, 1998 - The claim is not acceptable.

Background

On June 26, 1998, the claimant submitted an application for compensation benefits with regard to an infected right big toe injury. The injury date was recorded by the claimant as being June 16, 1998. The claimant indicated the following with respect to the accident:

"On June 12, 1998, I noticed my toe had a blister on the top. It was caused from rubbing against the steel toe part of my boot. June 16, 1998 I went to doctors and he said it was infected, gave medication and told to stay off feet. So I was using my sick time."

The employer's report of injury dated July 6, 1998, indicated "Mr. [the claimant] claims due to wearing his steel toed boots his big toe became infected."

Medical information from the attending physician dated June 16, 1998, indicated that the claimant was seen for pain related to his right big toe. The reported diagnosis was a right big toe superficial ulcer. It was noted in subsequent progress reports that the claimant had diabetes which was not well controlled.

On July 16, 1998, another physician reported that the claimant was assessed for a sore left toe and swelling which spread to the left foot. Objective findings were listed as follows: "He is an uncontrolled diabetic - gout, ulcer toes, cellulitis foot and obesity."

Laboratory investigations revealed the following:

X-ray report dated July 2, 1998 of right big toe: No abnormality was identified. There was no evidence of osteomyelitis.

Bone scan dated July 9, 1998: Impression: "Diffuse soft tissue hyperemia, right foot and ankle. Underlying osteomyelitis is not suspected."

X-ray report dated July 14, 1998 of right ankle: There was evidence of previous trauma involving the ankle. The abnormality involving the talar dome was most suggestive of avascular necrosis. A bone scan was recommended for confirmation.

X-ray report dated July 21, 1998 of right foot: Impression: "Gross Lisfranc fracture dislocation with a separate dislocation of the medial cuneiform."

On July 22 and 29, 1998, the claimant was assessed at the Diabetic Foot and Complicated Wound Clinic for evaluation of a bony protuberance of the medial aspect of his right foot which was associated with surrounding cellulitis. The examining physician's impression was that the Lisfranc fracture dislocation required surgical reduction within the first 24 to 48 hours of occurrence however reduction at this point was not feasible. The physician indicated that it was impossible to speculate precisely when this injury occurred as the claimant never had associated pain. It was possible that this injury actually occurred approximately one month prior to presentation when the claimant first injured his right great toe.

On July 31, 1998, another physician indicated that the claimant was complaining of severe pain in right heel. X-rays showed evidence of trauma but the claimant did not remember the eventful history. The diagnosis was a diabetic foot infection right heel pain, cause unknown.

In a letter dated August 7, 1998, the first attending physician wrote that the claimant was seen at the clinic on June 16, 21, 23, 25 and 29, 1998. On the first visit his right big toe was found to be infected with superficial 1 x 1cm. abrasions on the dorsal aspect of the toe. The physician indicated that the claimant mentioned that he wore work boots which can be responsible for the abrasions and infected big toe. The physician also stated that the claimant was an overweight diabetic and his diabetes was poorly controlled with peripheral neuropathy and using work boots in his condition was rather contraindicated.

On August 13, 1998, the case was reviewed by a WCB medical advisor at the request of primary adjudication. The medical advisor indicated that a Lisfranc fracture dislocation was related to tarso metatarsal joint on medial border of foot with the 2nd cuneform bone being particularly involved. It may be caused by direct injury or moderate stress applied to forefoot. The medical advisor indicted that this injury most likely occurred at time of the ulceration to great toe.

On September 1, 1998, Claims Services wrote to the claimant indicating that his claim was not acceptable with respect to the June 16, 1998, injury. It was the opinion of Claims Services that the information did not substantiate that the infection of the right big toe was the result of an accident arising out of his employment but rather due to his own footwear.

On September 10, 1998, the claimant submitted a separate application for compensation benefits indicating the following:

"I was repairing a tarp on a 3 ton truck, climbed out of box, standing on rear wheels, jumped to ground hurting right foot."

The date of accident was recorded as June 3, 1998 and which the claimant alleged he reported to the employer on June 12, 1998. The claimant indicated that he sought medical attention on June 5, 1998 and was told he had gout.

The employer's report of injury dated September 15, 1998, indicated "Mr. [the claimant] claims when he climbed down from 3 ton truck after repairing tarp and jumped off the back wheel he allegedly injured his foot." The date of injury was noted as June 3, 1998. The date reported to the employer was noted as August 16, 1998. In a letter dated September 21, 1998, the employer opposed the acceptance of the claim indicating that the claimant had filed a previous compensation claim which had been rejected and that this claim was for the same anatomical site and same date of lay off.

On October 13, 1998, the claimant provided a sworn statement to a WCB field representative indicating the following:

• approximately last spring, the claimant said he had a callous on his heel which subsequently got infected and needed medical attention. He was laid off work at the time so it did not arise out of or during the course of employment. After treatment, the condition healed completely, long before the most recent accident.
• prior to starting his shift on June 3, 1998, the claimant indicated that his right foot was 100%. During his shift he did not experience any difficulty or discomfort. At about 1500 hours he attempted to fix the tarp on the back of a truck which was not working properly. Once the tarp was secured he jumped 3 feet to the ground from the wheels located at the back of the truck and landed with all his weight on his right foot. He immediately felt pain centralized more or less to the back area of the foot (heel). There was one witness to the incident. The claimant indicated he did not report the accident to anyone on this day and he managed to finish the rest of his shift.
• by June 5, 1998, the pain in his foot progressively increased. By the end of his shift it was aching to the point where he needed medical attention. The claimant said that after his shift he went to a walk in clinic and his doctor told him he had gout. He was prescribed medication for the pain and he purchased some inserts for his work boots. The claimant indicated he performed his regular duties up to June 16, 1998 having increased difficulties. His supervisor was aware of his ongoing problems.
• on June 16, 1998, the claimant advised that he went back to see his doctor as his big toe on the right foot had swelled up to the size of a sausage. This was caused because it was rubbing on the steel toe section of his boot. The claimant said he was instructed to stay off work with no specific time limit. The claimant said that the reason he ceased work after his shift on June 16, 1998 was because of the blister and infection in his right big toe.
• the claimant indicated that he delayed in reporting his foot problems for two reasons. One was because his doctor was telling him that his pain was caused from arthritis and gout and not a broken bone. Secondly, the doctor also informed him that his pain was caused from the swelling of his big toe.

A statement from the claimant's co-worker dated October 16, 1998, indicated that he remembered the incident where the claimant jumped off the back wheels of the 3 ton truck and that he was aware of the claimant's foot difficulties after the accident. On October 16, 1998, the claimant's foreman indicated that the claimant phoned in sick on June 17, 1998. Up to this point the foreman said he was not aware of ongoing complaints or concerns regarding the claimant's toe or foot. The foreman indicated that the claimant officially reported his injury to him on September 9, 1998 by filling out a green card. The foreman also indicated in his statement that the claimant was an extremely hard working individual who had one of the best dispositions at the shop. "If [the claimant] says he was injured on the job then I truly believe he was."

On October 26, 1998, Claims Services informed the claimant that his claim for injury occurring on June 3, 1998, was not acceptable. The reasons for denying the claim was based on the following factors:

• the delay in report of an accident to the employer;
• the history of injury that the claimant provided to the WCB was not provided to any of the attending doctors or specialists who had sent reports into the WCB.

On July 28, 1999, a worker advisor submitted additional medical information for consideration. This included a note from the attending physician confirming that a consultation took place on June 5, 1998 and a letter from the treating orthopedic specialist stating his belief that the Lisfranc fracture was a result of the June 3, 1998, incident. In an adjudicative letter dated August 24, 1999, the worker advisor was informed that after further review of the information that he was unable to alter his earlier decision.

In a letter to Review Office dated September 17, 1999, the worker advisor contended that the infection of the right big toe was the result of the claimant's workplace activities and that the Lisfranc fracture arose out of and in the course of the claimant's employment on June 3, 1998. On October 27, 1999, the employer's representative provided a response to the worker advisor's submission.

On November 19, 1999, Review Office indicated that after reviewing both claims, that it had not been established that the claimant's right big toe infection was caused by an accident arising out of and in the course of the worker's employment. Specifically, the claimant was wearing his own work boots which he had purchased over a year before and whether these fit properly or not, was the responsibility of the worker. Review Office was of the view that any blistering caused by ill fitting work boots in a driver who does not do a great amount of walking was not consistent with an accident as defined in the Act.

Review Office noted that the claimant filed a claim for compensation for a June 16, 1998 non-specific type of situation where he claimed he noticed a blister on his right big toe caused by wearing steel toed boots. When speaking with an adjudicator on July 24, 1998, the claimant did not provide any history of trauma to have accounted for either the toe blister or the subsequently discovered fractures. He did indicate that a specialist he had attended had told him that his condition might have happened at work.

Review Office further noted that when the claimant sought medical treatment on June 5th this was for right great toe pain, yet when the claimant filed his second claim he stated that it was heel pain he was experiencing, yet he did not mention heel pain to the doctor. Neither did the claimant report any history of trauma to the doctor yet later the claimant determined he had jumped down from a truck tire two days previously, that is June 3, 1998. Review Office indicated that the claimant attended several other general practitioners and a specialist and had ample opportunity to provide a history of jumping off the truck on June 3rd but did not do so. Instead, the claimant told the various doctors that he was unsure of when his troubles began and then could not think of any foot trauma to have accounted for his problems. Given the total weight, Review Office concluded that neither claim for compensation was acceptable.

On March 16, 2000, the worker advisor appealed Review Office's decisions and an oral hearing was arranged.

Reasons

In this appeal there are two separate but related claims with respect to the claimant's right foot. The two claims under appeal relate to an injury to the claimant's right foot alleged to have occurred on June 3, 1998 and a claim for an ulceration of the right great toe alleged to have occurred June 12, 1998.

The issue in both these appeals is whether or not the two respective claims are acceptable. The relevant subsections of the Workers Compensation Act (the Act) are subsection 1(1) which defines accident and 4(1) which provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment. In accordance with subsection 1(1) the panel must initially be satisfied that there has been an accident.

In this appeal we reviewed all the evidence on file and given at the hearing and find that the weight of the evidence, on a balance of probabilities, does not support a finding that the claimant sustained personal injuries due to accidents arising out of and in the course of employment and therefore we find that the two respective claims are not acceptable.

With respect to the worker's claim for an infection to his right big toe we note the claimant has contended that this condition arose from rubbing from his steel toed work boots. We note from the evidence that the claimant is a diabetic and that in a report dated June 21, 1998 an attending physician recorded that "his [the claimant] BS [blood sugar] is not well controlled."

In a further report dated July 16, 1998 a second attending physician indicates:

"He [the claimant] is an uncontrolled diabetic." We further note in a report dated July 23, 1998 an attending specialist in infectious disease indicated that: "He [the claimant] is a 50 year old diabetic male with neuropathy of the feet."

At the hearing the claimant indicated that he had been on medication for his diabetes for some time, was suffering vision problems related to the diabetes and had a family history of diabetes. The claimant further indicated that his diabetes was being treated with insulin given by daily injection, that he saw a consulting physician with respect to his diabetes every three months and that he monitored his own blood sugar on a regular basis.

We also note in a report dated July 23, 1998 from a consultant specialist in infectious diseases at a hospital diabetic foot clinic that the specialist indicated with respect to further ulceration [2 x 1.5 cm] over a bony protuberance present on the claimant's foot that;

"He developed an ulceration on the right great toe secondary to wearing steel toed boots with two insoles... . Mr. [the claimant] used sandals when he developed the right great toe ulceration.

Unfortunately, at the site where the sandal strap crossed it abraded the bony protuberance and the above noted ulceration [2 x 1.5 cm] ensued."

We also note in a note from an attending physician from a local facility dated July 28, 1998 that he indicated:

"This is to certify that Mr. [the claimant] is infected with R big toe because of his diabetic condition."

We find based, on a balance of probabilities, that there is insufficient evidence to suggest that the employment was a causative factor in the development of the ulceration of the right toe. The evidence, in our view strongly suggests that the claimant's condition is due to his pre-existing diabetic neuropathy and not his employment. In support of this conclusion we note the claimant developed a subsequent ulceration which developed with the use of casual footwear. At the hearing and on file we note the claimant gave evidence suggesting a prior history of a foot ulceration on a different part of his foot which developed after he removed a callus. The claimant could not specifically recall which foot was involved at that time. In this regard we have also taken note of WCB Policy Section 44.10.20.10, Pre-Existing Conditions which states:

"The Worker's Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of employment."

We note that while the claimant's work does involve some walking he usually drives a three ton truck We therefore also concur with the conclusions of the Review Office that:

"Specifically the worker was wearing his own work boots which he had purchased over a year before and whether these fit properly or not, is the responsibility of the worker. In our view any blistering caused by ill fitting boots, in a driver who does not do a great amount of walking, is not consistent with an accident as defined in the Act."

Therefore we find that the claim with respect to the ulceration of the right great toe which occurred June 16, 1998 is not acceptable and the claimant's appeal on this issue is denied.

The second claim for an injury, namely a Lisfranc fracture dislocation of the right foot, is alleged to have occurred June 3, 1998 at work but was not diagnosed until July 21, 1998 from an x-ray examination. With respect to this claim, we note the claimant talked to a WCB adjudicator on July 24, 1998 following the above diagnosis being made on July 21, 1998 and did not recall a specific accident occurring that could have caused the injury. We also note from the Employer's Report of Injury that the claimant did not report an accident at work causing an injury to his right foot with respect to this claim until August 16, 1998.

We further note that the claimant saw attending physicians on June 16, 21, 23, 25 and 29, 1998 and July 16, 1998 and in medical reports submitted to WCB with respect to those examinations there is no indication of, or history given of, any trauma to the right foot, only an indication that there was a superficial ulceration of the right big toe.

The claimant attended a consultant in infectious diseases at a Diabetic Foot Clinic on July 23, 1998 two days following the above diagnosis and we note the consultant indicated in part in his narrative report:

" Mr. [the claimant] is unsure precisely how this lesion began... . Mr. [the claimant] is unsure when the bony protuberance appeared and how it occurred . He cannot recall any foot trauma .

It is impossible to speculate precisely when this injury occurred as Mr. [the claimant] never had any associated pain."

The claimant was seen by a second attending infectious diseases specialist who recorded in his report of July 31, 1998 that the claimant was complaining of right heel pain, that the x-ray had shown evidence of trauma, "but patient doesn't remember eventful hx [history]." The specialist's diagnosis at that time was right heel pain/cause unknown? Trauma?"

We note when the claimant saw his attending physician initially on June 5, 1998 he did not give any history of trauma which he then much later recalled as occurring on June 3, 1998 only two days prior to seeing his physician on June 5, 1998. In this regard we note and accept the employer's argument from the transcript of the hearing at page 16, line 10 which states:

"And this alleged incident of June 3, he [the claimant] sees a Dr. at a walk-in clinic and we have to believe that the very pain and discomfort that brought him to that doctor's office happened two days before, and yet you are being asked to believe that he went in there with this pain in his foot and didn't tell the doctor that, "It all started when I jumped off a truck."

We also concur with the employer that in their initial reports the attending specialists did not mention any trauma and only subsequently supported a relationship.

We find that there is a lack of continuity in the evidence to support a causal connection to an incident which is said to have occurred on June 3, 1998.

We concur with the Review Office that the claimant attended several physicians and specialists and had ample opportunity to provide a history of trauma. The most proximate evidence indicates that the claimant was specifically questioned about any traumatic events but consistently indicated that he could not recall any specific trauma and was unsure of the etiology of his right foot problem.

The claimant's attending orthopaedic specialist has indicated that the claimant's diagnosis indicates a significant injury. It is our view that with such a description there would have been some immediate symptoms notwithstanding a diminished pain sensation secondary to diabetic neuropathy of the feet and that the claimant would have recalled the event at the time and reported the same to the practitioners involved.

The most proximate evidence suggests that the claimant did not relate his right foot problems to any specific traumatic event at work until many months after the event even when specifically asked to recall.

We further note the delay in reporting to the employer or in making an application to the WCB which also brings into question the relationship between the Lisfranc dislocation of the right foot and an incident occurring on June 3, 1998 at work.

With respect to the second claim, we find that there is insufficient evidence, on a balance of probabilities, to establish that an accident occurred at work on June 3, 1998 which accounted for the claimant's right foot problems. Therefore we find that the claim is not acceptable and the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of June, 2000