Decision #29/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by the Review Office of the Workers Compensation Board ("WCB") which determined that he did not sustain personal injury by accident arising out of and in the course of his employment. A hearing via teleconference was held on February 1, 2012 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
In April 2011, the worker filed a claim with the WCB for an injury to his left big toe with the accident date of October 1, 2010. The worker provided the WCB with the following description of accident:
For the last 5 years my left big toe has been bothering me. I thought it was because of my boots. I tried other boots and it did make a difference. Certain boots I got over the 5 years would feel tight until they wore out and then I would get another pair. Sometimes when I got a new pair they would be okay or they would be tight again. The last time it hurt so bad I had to go see a doctor to see what was wrong with it.
The worker indicated that he saw a doctor in October 2010 who recommended that he see an orthopaedic surgeon. When seen by the orthopaedic surgeon in April 2011, he was told that he was required to have pins and to cut the tendon to lengthen the big toe. The surgery was booked for May 24, 2011.
The employer's accident report indicated that an incident was not reported by the worker.
In a report dated April 6, 2011, the treating orthopaedic surgeon stated:
"The patient is having difficulty with his left foot. The patient retired from [employer's name] recently after having worked there for 30 years. The patient wore work boots all those years. The problem he has is the metatarsus primus varus with hallux valgus and bunion formation. The second toe is pushed up dorsally with the great toe lying against the third toe. He does have shortening of the tendon of the second toe which is cocked up and on the third toe he has a flexion contracture of the PIP joint as well as some hyperextension of the MP joint. The patient would benefit from osteotomy…"
On May 31, 2011, the worker was issued a decision which stated that the WCB was unable to accept responsibility for his claim. The decision stated, in part:
"…you started having difficulties about 5 years ago when you got a new type of boot. You did not report your discomfort or your difficulties and continued to wear the boots, even though they caused you difficulties, for approximately 5 years. You also informed that when your supervisor noted that you were in discomfort in October 2010 he was able to accommodate you with a different style of boot…"
The adjudicator referred to subsection 17(5) of The Workers Compensation Act (the "Act") and stated that benefits may be disallowed if a worker failed to notify the employer of an injury within a reasonable time, and the other information did not establish that the injury was related to the employment. The adjudicator's opinion was that the worker's left big toe injury was not related to an accident arising out of and in the course of his employment. On June 13, 2011, the worker appealed the decision to Review Office.
On July 22, 2011, Review Office determined that the worker's personal injury was not caused by accident arising out of and in the course of his employment. Review Office placed weight on the following in making its decision:
- It was the worker's personal choice as to the type of work boot purchased and worn. The employer had no control over which type of boot was purchased by their workers.
- It was the worker's responsibility for the fitting of his work boots and this was not the employer's responsibility.
- The worker stated he could wear leather boots but choose not to because of the wet conditions. This spoke to the worker having a personal choice in the footwear worn.
- The worker stated that his boots "always felt tight" over five years. This was not an accident arising out of and in the course of his employment.
- Wearing the [brand name] boot for a few weeks in or about September 2010 would not have caused the deformity of his toe/foot or the bunion.
On November 23, 2011, the worker appealed Review Office's decision to the Appeal Commission. The worker raised a different mechanism of injury as the cause for his toe complaints, in particular an incident on May 8, 1992 where he injured his left ankle while exiting a piece of machinery. A hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s left foot condition arose out of and in the course of his employment or alternatively whether a pre-existing condition has been aggravated or enhanced by his workplace duties.
Worker's Position
The worker participated in the hearing by conference call. He answered questions from the panel.
The worker explained that in September 2010 he got new work boots, as his former boots were worn out. The new boots caused significant pain so he stopped wearing them. He then went to see his family physician to determine why his foot hurt. He was referred to an orthopaedic surgeon who performed surgery on the worker's left foot in May 2011.
The worker advised that he has not had any pain since the surgery. He advised that he retired shortly after his surgery so will not be returning to work. He also advised that the orthopaedic surgeon did not mention that the boots caused his condition.
Regarding his injury, he said that his big toe dropped behind and under his second toe. He also said that he never noticed the position of his big toe until the orthopaedic surgeon mentioned it.
The worker advised that he was provided with an allowance by his employer and was responsible for obtaining his own work boots. He said he first wore this type of boot in 2002 or 2003 for approximately six months. Then in 2010 he wore them for less than one hour. He said that he only had pain when he wore the boots. He attributed his left foot condition to wearing the boots.
When asked whether any member of his family suffered from a bunion condition, the worker replied "I believe it probably runs in the family ‘cause my brother and my grandfather had it, too, so..."
The worker advised that he reported this claim because he was working at the time that he had pain from the boots.
The worker indicated that he injured his left foot in 1992. He acknowledged that this hearing was only dealing with his 2010 claim and the relationship between his work and the injury.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel is whether the worker's claim is acceptable. For the worker's claim to be acceptable, the panel must find that the worker's left foot condition was caused, aggravated or enhanced by the worker's employment duties. We were not able to make this finding. We find, on a balance of probabilities, that the worker's claim is not acceptable. The evidence does not demonstrate that the worker's left foot condition was caused, aggravated or enhanced by his employment duties.
The worker submitted a claim to the WCB for his left foot condition which was diagnosed as metatarsus primus varus with hallux valgus (deformity of big toe) and bunion formation. He attributed the cause of his condition to wearing ill-fitting boots at work.
The worker's evidence is that he wore the ill fitting boots for approximately 6 months in 2002 and less than one hour in 2010. When he wore the boots he felt pain in this left foot. Regarding the 6 month period in 2002 he said that the pain ended when he switched to a different brand of work boot. In 2010, he again wore ill-fitting boots which caused pain but the pain ended as soon as he removed the boots.
We find that the worker has a pre-existing condition including a bunion on his left foot. The worker acknowledged that his condition may be genetic as other members of his family have the same condition. We could find no causative factors related to his employment. We were unable to find any lasting physical damage to his left foot as a result of wearing the boots for a relatively short period of time and find that feeling pain when wearing the boots does not satisfy the definition of accident set out in the Act.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 1st day of March, 2012