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 toes was not related to the steel toed work boots that he wore during the course of his employment as a drywaller. A hearing was held on December 11, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In February 2013, the worker filed a claim with the WCB for injury to his right foot and three toes that he related to an incident on December 20, 2012. The worker stated:

I didn’t realize it could be a claim.

In my work we wear steel toed boots and they rub my toes raw, which caused an infection. This progressed over time, but began December 20, 2012. I just got out of the hospital. I was there for five days. I had to be on intravenous due to this. It affected three toes on my right foot.

The worker indicated he sought medical treatment at a walk-in clinic around December 20 and the treating physician directed him to a hospital facility for further treatment.

The WCB obtained medical information from the treating physicians as well as the hospital facility where the worker attended for treatment. At the request of case management, a WCB medical advisor reviewed the information on April 12, 2013 and commented on the worker's medical condition.

By letter dated April 16, 2013, the worker was advised that the WCB was unable to accept responsibility for his claim based on the following rationale:

"You do have pre-existing conditions of type 2 diabetes mellitus, hypertension, dyslipidemia and coagulopathy (blood clots too easily). You have had a previous left great toe ulceration in early 2012. Diabetes, hypertension and dyslipidemia all contribute to the narrowing of blood vessels. This is part of the natural history of the diabetic vasculopathic condition, and would be particularly the case in a person with a coagulopathy. Those persons are particularly at risk for spontaneous blood clotting as it flows through the narrowed atherosclerotic blood vessels that reach their smallest diameter at the ends of toes. Blood clotting in the small vessels at the ends of toes causes the overlying skin to die resulting in an ulcer. Diabetic foot ulcers commonly occur in persons who do not wear steel toed boots. It is more likely that the first, second and third toe ulcers and the attendant osteomyelitis in the affected toes is related to the natural history of the pre-existing diabetic foot vasculopathy rather than wearing of steel toed boots.

Given the above, Rehabilitation and Compensation Services can not establish a relationship between your right foot/toes injury and your job duties. As such, your claim can not be accepted…"

On June 13, 2013, the Worker Advisor Office submitted that the worker's steel toed work boots were necessary for the worker's employment as a drywaller and that the boots caused the onset of his right foot difficulties. The worker advisor noted that the WCB medical advisor commented that the infectious disease specialist who saw the worker had not provided evidence beyond speculation. It was the worker's position that the WCB medical advisor also did not provide evidence beyond speculation that his steel toed work boots were not responsible for the onset of his toe condition.

On August 20, 2013, Review Office outlined their opinion that there was insufficient evidence to suggest that the worker's employment was a causative factor in the development of his right foot ulceration and infection. Rather, the evidence strongly suggested that the worker's condition was due to his pre-existing diabetic neuropathy and not to his employment. It was unable to find that the pre-existing condition was aggravated or enhanced. Review Office therefore concluded that the claim was not acceptable. On September 30, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

The worker is appealing the WCB decision to deny acceptance of his claim for injury.

Worker Compensation Board Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") provides that when a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the accident. This policy allows a claim to be accepted if the workplace injury aggravated or enhanced a pre-existing condition.

Worker's Position

The worker was self-represented. He described the circumstances surrounding his claim and answered questions from the panel. Some considerable time was spent during the hearing discussing the worker's footwear, his history of diabetes and treatment, and the onset of symptoms that led to his filing of a WCB claim.

His evidence at the hearing was similar to that provided to the WCB during the earlier adjudication of his claim. He indicated that his boots were old and surmised that perhaps they were tight in the toe area. He noted that his abrasions were at the top of his foot, behind his toes. More specifically, the abrasions were on his big toe on top, the second toe on side, and the third toe on top.

Regarding his footwear at the time of the incident, the worker advised that he was wearing $300 CAT boots that were ankle height, and were 9EEE in size. They were purchased from a specialty footwear store. The leather boots had a steel toe but the worker was uncertain as to whether the boot also had a steel plate along the bottom. He indicated that for later boot purchases, he changed to 9EEEE and used the services of an "orthopaedic doctor" in that regard. As for the worker's boots that he wore in December 2012, they had a hard tread on the bottom with the original insoles inside them. There was a bit of wear at the back of the heels but the stitching on the boot was not worn out. He always tied his boots up properly, which locked his heel into place. The boots were two years old and he found them to be comfortable. He was not having specific problems with them and when asked if the boots were about due for replacement, he responded "maybe" but did not indicate a specific plan. His work was mostly indoors, and he did not have specific problems with the soles of his feet. The worker wore cheap socks that he bought in bulk, and tossed them out when they had a hole. He could not point to particular wear or seam problems with his socks around the time of the incident, nor was there a repeating location for the holes in his socks.

When questioned about his position that the boots may have been tight versus the idea that leather boots would perhaps loosen rather than tighten with age, the worker acknowledged that he was only guessing that the boots were tight. He does not recall there being a fit problem before the abrasions, nor was he aware that his boots were losing their general effectiveness.

The worker also described the specific contract he was working on at the time of his injury. He indicated that he had increased to 12 hour days to earn more money before the Christmas season. He did not change his job duties in any other way. He continued to work indoors, taping and plastering on installed drywall. He was on an out of town project for about a month and was close to the end of the project when he had worked two days while noticing that his toes were sore. At that point, he had to stop working and sought treatment at a walk-in clinic. His toes did not bleed at the outset. He noticed redness and chafing on one toe and then the next, and within a few days it had become infected. It was established that the abrasions were on the big toe on top, the second toe on the side, and the third toe on top. He did not check the inside of the boots to identify a specific problem in the boot.

Employer's Position

The worker is self-employed and maintains minimal WCB coverage for himself as the only employee.

Analysis

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker was injured by an "accident arising out of and in the course of his employment." In other words the panel must find a causal connection between the worker's injuries and his employment.

The panel notes that this claim has been confounded by the worker's pre-existing diabetic condition which he has had for about 10 years, with conflicting evidence on whether the condition was well or poorly controlled. The issue before the panel is not whether the worker's right foot/toe issues are causally related to the worker's diabetic condition but rather whether the panel can find factors associated with the worker's performance of his job duties that could cause, on a balance of probabilities, the worker's right foot/toe difficulties. The panel was unable to make this finding, for the reasons that follow.

The panel first examined the worker's job duties. He essentially worked indoors taping and finishing drywall. While the flooring was often rough, the worker would spend considerable periods of time standing or moving only short distances while performing his job duties. The worker's evidence was that he would occasionally use scaffolding. He was not required to crawl. As such, the panel finds that there was very little lateral or forward/backward pressure on the worker's boots while at work, which could impact on his right foot inside the boot by bringing it into contact with the sides, front or top of the boot. As such, the panel finds that the worker's job duties were not in and of themselves the cause of the worker's right foot difficulties.

The panel questioned the worker extensively about his boots and socks, and finds that they are not causative of the worker's right foot/toes difficulties, based on the following considerations:

• The worker wore a high end leather boot, with a steel toe, which holds the shape of the toe box. The worker also indicated that he found the boots to be comfortable and could not, at any point either at the time of the incident or at the hearing, identify any structural problem with the boots. The hard tread sole was in good shape, there was a bit of rounding at the heel, all seams were intact, there was no irritation point inside the boots and there was only minor scuffing of the uppers. While the worker had worn the boots for two years at the time of the incident, he had not yet contemplated replacing them.
• The worker advised that his boots were medium (ankle) height. He always tied up his boots securely. This secured his heel against the back of the boots, and in the panel's view precluded jamming of his toes against the front of the boot. His boots were size 9EEE and appear to have been sufficiently wide, given the worker's evidence that he had no general recollection of his toes rubbing against the sides or tops of the toe box. He reiterated a number of times at the hearing that he found his boots to be a comfortable fit.
• The worker indicated that his first comments to the WCB and to his doctors that his boots were tight were only speculation on his part, and were not based on a specific recollection that the boots were tight. The worker acknowledged at the hearing that leather boots would likely stretch rather than tighten after two years of regular use. In the panel's view, boots would not become tight for the first time, two years after purchase.
• The worker indicated that up to the time of his right foot difficulties in December 2012, he wore cheap socks which he bought in bulk. He would throw the socks out once they got holes in them, which would show up in various parts of the sock. Under questioning, he could not identify any particular problem or wear pattern with his socks in December 2012 that could be related to his medical difficulties with his toes.
• The panel notes that the areas of the foot that required treatment were the big toe on top, the second toe on the side, and the third toe on top. We find it difficult to correlate this pattern of injury to ill-fitting footwear, given that the worker's foot was securely held in place at the heel and the roominess in the toe box that would have been assured by the steel toe construction of the boot.

The panel then reviewed the medical evidence on file to determine the degree of support for a causal relationship between the worker's right foot difficulties and his job duties. The panel notes that a WCB medical advisor reviewed the medical information on file in a memo dated April 12, 2013 and noted, in part:

[The worker] has pre-existing poorly controlled type 2 diabetes mellitus (as per the February 21, 2013 hospital discharge summary), hypertension, dyslipidemia and a coagulopathy (his blood clots too easily). While there is no apparent history of previous right foot ulceration, [the worker] did have an ulceration to his left great toe in early 2012 that progressed to osteomyelitis while he was away in Arizona. There is no evidence that [the worker] was wearing steel toed boots at the time. X-rays done in relation to the left great toe ulcer dated April 4 and 23, 2012 documented vascular calcification (ie. atherosclerosis/blood vessel narrowing) in the left foot.

Diabetes, hypertension and dyslipidemia all contribute to the narrowing of blood vessels. The existence of the aforementioned blood vessel calcification in the small vessels of the left foot predicts the likely presence of vasculopathy/blood vessel narrowing in other parts of the body. Indeed this was confirmed on an April 6, 2007 bilateral knee x-ray and subsequently on a January 4, 2013 right foot x-ray which demonstrated extensive vascular calcification in the right forefoot.

Foot ulcers are common in persons with diabetes, particularly in those with blood vessel narrowing/reduced blood flow to the distal parts of the feet ie ends of toes. This is part of the natural history of the diabetic vasculopathic condition, and would be particularly the case in a person with a coagulopathy. Those persons are particularly at risk for spontaneous blood clotting as it flows through the narrowed atherosclerotic blood vessels that reach their smallest diameter at the ends of toes. Blood clotting in the small vessels at the ends of toes causes the overlying skin to die resulting in an ulcer.

It is highlighted that diabetic foot ulcers commonly occur in persons who do not wear steel toed boots. It is probable that the foot ulcers/osteomyelitis in the toes of [the worker's] right foot are consistent with the natural history [of] his pre-existing diabetic foot vasculopathic condition.

In contrast, the worker's infectious diseases specialist indicated on February 26, 2013 that the worker had local trauma at the right foot and indicated it was likely related to ill-fitting boots, with a similar history reported by the worker's attending physician on January 4, 2013. The panel, however, places less weight on these two earlier medical opinions, given their reliance on the worker's reported history of ill-fitting boots. The panel finds that is not consistent with the worker's evidence at the hearing that the boots were in fact comfortable and that he had been speculating at that time as to the cause of his right foot difficulties. The panel also notes that the worker had been diagnosed with a diabetic left toe ulcer earlier in 2012 and that a subsequent bone scan on the right foot on February 25, 2013 was unclear as to the presence of osteomyelitis of the third toe, and that "it was also possible that all of the changes are chronic and do not signify an acute process."

After consideration of the medical evidence, the panel places greater weight on and adopts the conclusions reached by the WCB medical advisor, in concluding that the worker's job duties or footwear were not the cause of his right foot difficulties.

Based on this analysis, the panel finds that the worker's right foot/toe medical difficulties are not related to the worker's job duties or footwear. Accordingly, the panel finds that the definition of a workplace accident under the Act hasn't been met. The worker's appeal is therefore denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of January, 2014