The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the injury to his left foot was not caused by an accident at work on July 19, 2012. A hearing was held on July 17, 2013 via teleconference to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On August 28, 2012, the worker filed a claim with the WCB for a left foot injury that occurred on July 19, 2012. The worker stated:

I was casting at the time 1350 degrees aluminum. I guess I spilled some and when I was on my way to the cast, I stepped in some hot aluminum. It burned through my work boot and burned the bottom of my left foot. I burned the pad of my foot just below the 3^rd toe. I scraped off a piece of aluminum off the bottom of my boot. The burn had not fully healed. There was an ulcer (film over top of skin). I kept on working. Then, I was laid off July 25. My wife and I left Winnipeg on July 28, I was driving. We stopped in …for the night. My foot was a bit swollen. The swelling went down and we drove the next day and arrived in …that night. My foot was a bit swollen again. From there, I soaked it with salt water and put Polysporin on it. It was looking okay until I woke up in the morning of August 7. My foot was all red and toes were hurting. I went to the …hospital. I was put on antibiotics every 12 hours through IV and an oral antibiotic every 12 hours…I had 3 toes cut off my left foot.

On September 5, 2012, the employer advised the WCB that they had no knowledge of the worker injuring his foot until he called on August 28, 2012 to say that he was in the hospital and had some toes amputated. The worker said he reported the incident to the lead hand on their drive to work on July 20, 2012. The lead hand, however, had no recollection of this. The employer indicated that he talked with other employees who were working on the same shift and no one recalled the worker had burned his foot.

Medical information showed that the worker was seen at a hospital facility on August 15, 2012. The report stated that the worker "burnt bottom of left foot three weeks ago - stepped on molten aluminum." The diagnosis was a burn to the foot with secondary cellulitis tracking up the leg. On August 23, 2012, the worker underwent amputation of his left second, third and fourth toes and on August 24, 2012, a revision amputation.

On August 30, 2012, the worker advised a WCB adjudicator that he mentioned the accident to his lead hand but no forms were filled out. He said his foot was a little tender but he was able to work full duties. He knew he would be laid off on July 25. He did not seek medical attention at the time of the accident. He said his foot started swelling around July 28/29.

In a further telephone conversation with the WCB on September 11, 2012, the worker indicated that he spoke with the lead hand the day after the injury. "[The lead hand] made a comment saying "Gary told me to watch out for you". Gary is [lead hand's] supervisor and [lead hand] stated Gary told him that because he worries about people leaving the company and then faking an injury." The worker indicated that he mentioned his injury to two other co-workers when they were helping him pack. They saw him limping and he mentioned the injury to them. The worker indicated that he never would have made a claim, had it not been for the fact that he had an infection and had his toes amputated.

The WCB contacted the lead hand and the two co-workers identified by the worker on September 17, 2012. The lead hand said he first became aware of the worker's injury about one to two weeks ago from some co-workers. He said there was no mention of a work injury at the time they were helping the worker move. The workers wore CSA approved boots and thought the worker's story was not really what happened. The two other co-workers advised the WCB that they were not aware of the worker injuring his foot at work.

In a decision dated October 15, 2012, the worker was advised that his claim for compensation was not acceptable due to the lengthy delay in seeking medical attention and the inability to confirm through his employer that an injury occurred at work. In January 2013, the worker appealed the decision to Review Office.

On February 13, 2013 Review Office confirmed that the worker's claim for compensation was not acceptable. Review Office stated:

"[The worker] did not report an injury at work on July 19, 2012, he did not show anyone the injury or the damage to his boot and he did not seek medical attention for the burn. The Review Office cannot show that [the worker] either stepped on molten aluminum or that it burned through his boot causing a skin burn. As such, there is no way for the Review Office to relate the development of a plantar surface diabetic ulcer and ultimately necrotic tissues and osteomyelitis of toes 2-4 of his left foot to an accident "arising out of, and in the course of employment."

On May 2, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on July 17, 2013. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The medical information received by the panel was forwarded to the worker for comment. On November 18, 2013, the panel met further to discuss the case and rendered its final decision.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the WCB's 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.

The worker disagrees with the WCB and Review Office decisions that his claim is not acceptable. The key issue to be determined by the panel deals with causation and whether the worker’s injury arose out of and in the course of his employment.

Worker's Position

The worker was self-represented and participated in the hearing by teleconference. A social worker and chiropodist from a diabetes treatment centre were with the worker and assisted with his presentation. The worker and chiropodist answered questions posed by the panel. The chiropodist also sent in a letter of support for the worker dated June 28, 2013.

The worker described the injury. He said he was working with molten aluminum. He was transferring a ladle of molten aluminum from the furnace to a tilt pour machine. As he was carrying the ladle some molten metal spilled to the floor through a hole in the ladle. He said it made a turtle shaped spill onto the floor. He stepped on the molten metal but continued working.

He felt some discomfort but did not think it was serious. He noted a piece of molten metal about the size of a silver dollar had burned the sole of his work boot. He said his wife noticed the burn that evening. He did not start treating it until about a week later.

The worker said that he was moving out of province, and therefore did not work a full week after the injury. By this time his wife had noticed the burn but it was not bothering him other than some discomfort and a slight limp. He could not explain why his co-workers said they did not notice his limp when questioned about it. With respect to reporting to his employer, he said that he told the lead hand. He said he did not complete injury forms because he did not realize the burn was serious.

In answer to questions he described his work boot as:

• four years old
• CSA approved casting boot with a steel toe and a steel plate
• rubber sole, about ¼ to ½ inch thick, with thin ribs which had worn out because the boot was approximately 4 years old
• green triangle marking on the boot

He also said he was wearing wool socks at the time of the injury.

The worker advised that he stopped working for the employer a few days later and did not keep the boots.

Regarding the loss of sensation in his feet, the worker explained that this condition started in 2005 and has worsened. He said it has spread to his legs and hands. He said this condition is the result of his diabetes.

The worker's chiropodist stated that diabetes does not cause infection, rather it adds an increased risk for infection. She also gave evidence about the impact of diabetes on the worker's ability to feel pain.

The worker acknowledged that the treating physician did not identify the injury as burn. The worker said that he discussed this with the physician who responded that all he can say is that he saw an ulcer because he did not see the burn. The worker noted that the physician did not see his injury until three weeks after it occurred.

The worker submitted that the burn caused his infection and the infection caused his other problems including the amputations. The worker reviewed the photographs he had provided, indicating the location of the original burn on his foot.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker has appealed the WCB and Review Office decisions that his claim is not acceptable. For the worker's appeal to be successful, the panel must find that the worker's injury arose out of and in the course of his employment. The panel finds, on a balance of probabilities, the worker's claim is acceptable. The panel finds that the worker sustained a burn injury to his left foot while at work on July 19, 2012.

In reaching this decision, the panel accepts the worker's description of the mechanism of injury. The worker explained that his boot was old and worn and that the molten metal hardened and became embedded into the sole. He continued to work with the hot metal under his boot until he felt discomfort. Because of his diabetes he did not feel acute pain from the burn.

The panel also notes that the worker's boots, with a green triangle, had a steel shank which would prevent the molten metal from burning through the sole but would allow heat transfer which would result in an indirect burn but not an open wound.

The panel notes that the physician chart dated August 15, 2012 indicates, in part, that "60 year old male, burnt bottom of (L) foot 3 weeks ago -stepped on molten Aluminum, minimum feeling in sole regularly." The chart also notes that "it became quite swollen a week in. Travelling from Winnipeg. Soaked in salt water and improved." The report notes a "burn on sole". This is the first medical attention that the worker received for his left foot after moving from Manitoba. The panel finds this report is consistent with the worker's evidence regarding injury and initial treatment.

The panel notes that the worker was examined by an internal medicine specialist in the endocrine clinic on June 19, 2012 for his Type 2 Diabetes. The report indicates that on physical exam the worker had bilaterally markedly decreased vibration and cold sensation to his feet. It also noted diminished pedal pulses. This report established that approximately four weeks before the injury the worker did not have a burn or wound on his feet. It also confirms that the worker had some reduced feeling in his feet which is consistent with his evidence that he did not feel significant pain from the initial injury.

Finally, the panel finds that the worker's delay in reporting and treating his injured foot was due to the lack of sensation in his foot and hence his view that the burn was not serious. This finding is consistent with the information from the treating chiropodist set out in a letter dated June 28, 2013 which stated the worker has sensory motor peripheral neuropathy which is the primary reason for delayed reporting of foot injuries or trauma in persons with diabetes.

In accepting the worker's claim, the panel finds on a balance of probabilities, that the worker burnt his left foot while at work on July 19, 2012 and that the claim is acceptable. The panel does not make any findings as to the extent of the injury and any secondary consequences of the injury, specifically in regard to the extent of the surgical procedures. These determinations are to be addressed by the WCB in its management of the claim.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of November, 2013