The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 16, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 16, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In December 2001, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report injuries to both feet during the course of his employment as a hog pusher on December 5, 2001. The claimant described his injury as follows:

Employer supplies steel toe rubber boots for this position. I am walking, pushing, lifting, and sometimes running all day. There is always cold water on the floor and I also work in a cooler. At times there is ice on the floor, sometimes there is some slipping. Employer does not supply stockings, I usually wear woolen stockings for warmth and also I have been wearing bunion cushions and sometimes my feet are so sore I can hardly put my street shoes on.

An Employer's Accident Report dated December 11, 2001, indicated that "employee claims the problem has been going on for some time and believes its because of the rubber boots."

Medical reports on file showed that the claimant was examined for bunions in January 1998. The attending physician indicated that there was no record of this being work related. In a further report from a second physician who saw the claimant on December 5, 2001, the physician indicated that this was "not WCB."

In order to adjudicate the claim, a WCB adjudicator contacted the claimant to obtain information concerning his employment duties and to ascertain what he felt caused his bilateral foot difficulties to develop. The adjudicator also spoke with the employer with respect to the claimant's work duties and to gather information as to whether or not the claimant made any complaints about his feet.

In a letter dated January 11, 2002, primary adjudication advised the claimant that his claim for compensation was denied as it was unable to establish that his work activities were the direct cause of his bilateral foot difficulties. Primary adjudication further noted that the claim was denied because it appeared from file information that the claimant did not report his difficulties to the employer until his need for surgery and as well as the fact that both attending doctors indicated this was not work related.

On July 3, 2002, correspondence from the claimant's union representative appealed the WCB's decision to deny the claim. It was the union representative's position, based on medical information dated May 16, 2002 and May 28, 2002, that the claimant had "suffered the development of bilateral bunions because of the improperly fitted boots he had to wear at work."

Following consultation with a WCB healthcare consultant on July 12, 2002, primary adjudication advised the union representative on July 18, 2002, that the primary causation and need for surgery related to the claimant's congenital foot configuration. The healthcare consultant also referenced the opinion that was expressed by the treating surgeon that the claimant's condition was not WCB related. As no change would be made to the original decision to deny the claim, the case was referred to Review Office for further consideration.

On August 2, 2002, Review Office confirmed that the claim was not acceptable based on the following facts:

• the WCB medical advisor who reviewed the claim commented that the claimant had congenital abnormalities of both feet with an exceedingly wide splayed forefoot. While he acknowledged that improperly fitting footwear could aggravate the condition, the medical advisor was of the opinion that the primary cause of the claimant's ongoing problems was the congenital foot configuration.
  
  
• the claimant wore ill-fitting boots for a short period of time after starting his job as a hog pusher. He admitted that while the employer supplied the boots, it was his responsibility that they fit properly. After a short period of time the claimant was provided with bigger and wider boots. The employer contended that the claimant did not make ongoing complaints of foot pain.
  
  
• Review Office concluded that the claimant's bunions were attributable to his congenital foot abnormality, rather than wearing too small boots at work years earlier and therefore the claim was denied.

On September 3, 2002, the union representative asked primary adjudication to convene a Medical Review Panel (MRP) as she felt there was a "definite and distinct difference of medical opinion" between the WCB's healthcare consultant and that expressed by the claimant's treating orthopedist. In a response dated September 11, 2002, the request for an MRP was denied by primary adjudication as it was the supervisor's opinion that the decision to deny the claim had been based on adjudicative criteria and not on medical grounds.

In correspondence to Review Office dated September 6, 2002, the union representative requested reconsideration of the August 2, 2002 decision. In a response dated November 7, 2002, Review Office indicated that no change would be made to its earlier decision to deny the claim. On November 18, 2002, the union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) 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.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes

1. a wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises
      out of, and in the course of, employment, and
      
3. an occupational disease

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

As part of the claimant's job description, it was a mandatory requirement that he wear rubber boots supplied by the employer. A stock of boots was maintained in a company storeroom and this stock was made available to those workers who performed the same job duties as the claimant. According to the evidence, the stock of boots consisted only of the most common sizes and size 13 was not regularly kept in stock until after the claimant started working with the employer.

The claimant has an extremely large shoe size (13 EEE) and we accept his evidence that he was provided with size 13 standard width boots, which had to be specially ordered from the manufacturer every time he needed a new pair. The claimant further testified that he became aware that the rubber boots manufacturer only made 13 regular and did not make 13 EEE at all. When he first started, the claimant was given size 12 boots to wear and following several complaints he was eventually given size 13 boots. The claimant pointed out that even though he had been provided with a longer pair of boots they were not any wider than the size 12 boots. He contended that if he had been given wider boots then this would have prevented the extreme tightness across his large foot.

The claimant has sustained an injury, which arose out of and in the course of his employment. Accordingly, the worker’s claim is acceptable and his appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of February, 2003