The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a right toe injury that eventually led to an amputation. The claim for compensation was denied by primary adjudication and Review Office on the basis that it was unable to establish that the worker suffered a personal injury arising out of and in the course of his employment. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on November 20, 2008 to consider the matter. The panel then requested additional information and after receipt of same, reconvened on March 18, 2009 to render its final decision.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable related to the fifth toe amputation only.

Decision: Unanimous

Background

On July 4, 2006, the worker contacted the WCB’s call centre to report that he injured his right leg on September 2, 2005 because of the boots that he wore at work. The worker explained that his boots were too tight which caused him to develop an open sore on the top of his right foot. He continued to work with the sore as he did not want to miss time from work. Around October 16, 2005, the open wound got much worse and his foot started to swell. He was prescribed anti-biotics and was told to stay off work but he continued working. As the infection continued to get worse, he then sought treatment at a local hospital and was told that his leg had to be amputated at the knee. He said he had been off work since late October 2005 due to the amputation.

The worker further indicated that his employer did not supply the work boots nor do they provide money to purchase work boots. He said he worked in sewer construction and that his feet tended to be wet as they were constantly exposed to mud and water.

In a decision dated July 5, 2006, it was determined by a WCB adjudicator that the worker’s claim for compensation was not acceptable as his injury did not arise out of his employment as was required under subsections 1(1) and 4(1) of The Workers Compensation Act (the “Act”). The adjudicator indicated that although the worker was wearing boots at work, it was a personal choice which boots he purchased. As a result, the WCB was unable to accept responsibility for his claim.

On April 1, 2008, a lawyer acting on the worker’s behalf, advised the WCB that there were inaccuracies in the adjudicator’s letter of July 5, 2006. He stated that while it was true that the worker’s employer did not supply the work boots, it was an express term of his employment that he was required to wear steel toed boots and the worker complied with all respects with that requirement. He stated it was inaccurate to state that it was the worker’s choice what size and kind of boots he purchased. He argued that the worker was required by his employer to wear steel toed boots in the course of his employment which is exactly what he did. The injury to the worker’s toe was a direct result of difficulties he experienced with boots he was required to wear in the course of his employment and that the injury occurred during the course of his employment.

In a response to the lawyer dated April 11, 2008, the WCB adjudicator noted that the report of injury as given to the WCB’s claims information representative by the worker on July 4, 2006 was that the worker’s boots were too tight and that he chose to continue working thereby causing an open wound. He eventually bought larger boots but the wound did not heal. She noted that the worker reported that he was a type 2 diabetic. The adjudicator stated that she contacted the accident employer and was told that safety boots were mandatory, that they had to be CSA tagged and were a condition of employment. The employer did not provide any monies for purchasing safety footwear and the choice of boots was up to the employee. The adjudicator concluded that while safety footwear was a condition of the worker’s employment, his footwear was not under the direct control of the employer. The information therefore did not establish that the worker’s blister was a result of an accident arising out of and in the course of his employment but rather due to his personal choice of footwear.

In a May 8, 2008 decision, Review Office stated that the worker, on July 4, 2006, advised the WCB: “My boots were too tight and caused an open sore on the toe of my right foot”. The injury was the open sore and the cause for the open sore as described by the worker was that his boot was “too tight”. Review Office noted that although the worker’s job required him to wear CSA steel-toed boots, the fitting of these boots or the worker’s purchase of his choice of footwear was not under the direct control of the employer or the workplace. Based on these factors, Review Office was unable to conclude that the worker’s injury was due to an event arising out of and in the course of his employment and that his claim for compensation was not acceptable. Review Office’s decision was appealed by the worker’s lawyer on July 4, 2008. On September 12, 2008, the lawyer advised the Appeal Commission that he was no longer representing the worker. On November 20, 2008 a hearing took place.

Reasons

Applicable legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) 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.

The issue to be determined by the panel deals with causation and whether the worker’s right leg amputation was caused by an accident arising out of and in the course of employment.

The worker’s position:

The worker was initially represented by legal counsel, but was self-represented at the hearing. The worker’s position is set out in a letter dated April 1, 2008 from legal counsel which states: “The injury to his toe was a direct result of difficulties experienced with boots he was required to wear in the course of his employment and in fact, the injury occurred during the course of his employment.” At the hearing, the worker confirmed that he had work boots which caused him to develop a blister on the outside of his end (fifth) toe. He stated that he was working in muddy conditions and then developed an infection of his fourth toe. He continued to work and he felt that the boot and the wet conditions caused his infection to get worse. The worker’s evidence was that one day, he got up to go to work in the morning, but he couldn’t walk so he went to the hospital. He was told that there was nothing wrong with his foot, so he continued to work. The pain continued to affect his ability to walk, so a few days later he went back to emergency, where he was advised that they would have to amputate his leg, just below the knee.

The evidence given by the worker at the hearing tended to be vague and at times confusing. The panel finds that the worker was not being evasive, but his ability to recall and describe events was not good. Following the hearing, the panel requested the hospital medical records to obtain some clarification as to the chain of events. The hospital records indicated that on April 30, 2005, the worker was admitted to the hospital on a semi-urgent basis for a right fifth toe infection. On May 1, 2005, an amputation of his gangrenous right fifth toe was performed. The worker tolerated the procedure well, and was released. He came back for follow-up appointments every two weeks until June 24, 2005. At the last follow-up appointment, there was no evidence of infection at the amputation site and no significant tenderness present. He was complaining of swelling of the ankle, which was quite noticeable. X-rays were taken which identified no acute abnormality and specifically, there did not appear to be any evidence of osteomyelitis. A referral to an infectious disease specialist was made to rule out a possible occult infection, but it would appear that the worker did not follow through with this referral.

On September 30, 2005, the worker presented at the hospital with complaints regarding his right fourth toe. It was noted to be necrotic and he was given antibiotics and discharged.

On October 13, 2005 the worker re-attended at the hospital with some malaise, mild fever and increased pain at the right fourth toe. When the dressing was removed, the right forth toe was found to have undergone an auto amputation. The worker was treated and discharged.

On October 21, 2005, the worker presented at the hospital with an acutely infected right foot. Examination revealed a draining sinus at the site of the right fourth toe amputation. Gentle pressure on the dorsum of the foot produced crepitus and a small chunk of bone was extruded from the opening at the amputation site of the right fourth toe. A large black blister was present on the plantar aspect of the foot. Foul-smelling material drained from this lesion. Pain was present on the plantar aspect of the foot. It was noted that the worker was a diabetic and that his blood sugars were higher than normal. His condition was determined to be limb threatening and on October 23, 2005 the right leg was amputated below the knee.

The panel also requested medical records from the worker’s family physician. The records indicate that on January 8, 2005, the worker was diagnosed with type 2 diabetes which was poorly controlled. On June 28, 2005, the notes indicate poor prognosis for the type 2 diabetes because of non-compliance. On September 15, 2005, the worker was diagnosed with an open wound (infected) of the right foot and poor glycemic control. He was treated with antibiotics and the prognosis was thought to be good. On September 27, 2005, the worker was diagnosed with a right foot ulcer and gangrene. A referral to emergency was made.

Analysis:

In order for this appeal to be successful, the panel must find that the worker’s right foot/leg amputations arose out of and in the course of his employment. The panel notes that the amputation occurred in three stages:

• Auto-amputation (due to gangrene) of the fourth toe on October 13, 2005; and

• Surgical amputation of the right leg below the knee on October 23, 2005.

The panel finds that the May 2005 surgical amputation of the fifth toe resulted from an accident arising out of and in the course of the worker’s employment, and therefore his claim for the fifth toe is acceptable. The subsequent amputations in October 2005 cannot be related to his employment and therefore the claim for these injuries is not acceptable.

In arriving at our decision, the panel relied upon the following evidence:

• Although the worker was diagnosed with poorly controlled type 2 diabetes, the panel does not consider the diabetes to be the cause of the fifth toe amputation. The diabetes only predisposed the worker’s foot to increased risk for infection, gangrene and the need for subsequent amputation.
• It was the trauma caused to the foot by the work boot which initiated the process which ultimately led to amputation of the fifth toe. The work boot caused the worker to develop a blister, which became infected and necessitated the amputation performed on May 1, 2005.
• Although the work boots were not provided by the employer, the worker was required by his employer to wear steel toed boots. The panel considers the work boots to be part of the safety equipment which was required by the worker to perform his duties.
• Following the fifth toe amputation, the worker appears to have experienced a complete recovery. There is no medical evidence of ongoing problems with the right foot between June and September, 2005.

We therefore find that the worker’s claim for compensation related to the amputation of his right fifth toe is acceptable.

With respect to the worker’s medical condition from September 15, 2005 onwards, the panel is unable to relate the subsequent amputations to his employment. There is no indication that his work boots caused any further blisters to develop and the hospital records do not identify the fifth toe amputation site as a location of infection. The October 21, 2005 examination identified the forth toe site and a large blister on the plantar aspect of the foot as the acutely infected and draining areas. The worker alleged that he was working in wet and muddy conditions, but the panel is not satisfied that this alone would be sufficient to cause the worker’s right foot to become infected.

As a result, the panel finds that the worker’s claim for benefits is acceptable only as it relates to the amputation of the fifth right toe. The worker’s appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 27th day of March, 2009