The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that there was insufficient evidence to establish that his symptoms of January14 occurred in relation to events arising out of and in the course of hisemployment.  A hearing was held onAugust 7, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 16, 2014, the worker filed a claim with the WCB for injury to both hands with the accident date of January 5, 2014. The worker stated:

I had 2nd degree burns on both hands. I had no heat for 5 hours and it was freezing outside. The diesel in the truck froze. The truck stopped. It was so cold my feet started to freeze. Another truck driver stopped and took me to the truck stop then the tow truck came I went back to the truck. It was 2.5 hrs. I was between the truck and the tow truck to help out.

I had my gloves on through all of this, but due to the stress, I left my gloves behind accidentally. I had no choice but to keep working without my gloves. Even with the gloves on, my hands burned from the cold. My fingers were frozen.

A Doctor First Report showed that the worker sought medical treatment on January 15, 2014 based on the following accident description: "Truck broke down - waited 5 hours outside - 40 degrees outside - had to reattach trailer with bare hands." The diagnosis was "2nd degree frostbite 2nd - 5th fingers both hands. Not working since time of injury (which makes sense)."

On January 20, 22, 28, and 30, 2014, a WCB adjudicator documented telephone conversations she had with the worker and the employer regarding the events that occurred January 5, 2014 up until the day that the worker sought medical treatment on January 15, 2014.

On February 4, 2014, the WCB acknowledged that an accident occurred to the worker on January 5, 2014 involving both hands but that no responsibility for time loss or medical expenses would be issued beyond the date of accident. The case manager stated:

...you experienced pain in your hands as a result of cold exposure on January 5, 2014. Due to a breakdown, you were forced to wait without heat for four hours in your truck during winter weather conditions. When you arrived back to the yard, you described sore hands to your dispatcher and reported similar hand pain to the Safety and Compliance Manager the following morning while discussing truck problems. You did not seek medical attention at that time.

You experienced pain in your hands for a couple of days following the incident, but did not feel a visit to the doctor was required. Your hand problems resolved by January 8, 2013 and you were ready to return to work. You were in contact with your employer on a number of occasions but were advised you would not be dispatched until you had a meeting with your employer. There was no further discussion regarding hand issues.

In a follow up discussion with your Human Resource Manager, he indicated you requested to be sent out on another trip in your January 6, 2014 discussion. No ongoing complaints were made regarding hand problems. He advised due to performance related issues, they would not be scheduling you on any further trips until an investigation was complete. You attended the January 14, 2014 meeting and reviewed a number of issues, but did not report any problems with your hands.

Subsequent to the January 14, 2014 meeting, you began to experience burning sensation and peeling to your hands. Medical attention was sought the following day.

Medical information on file confirmed you were first assessed for bilateral hand issues on January 15, 2014 and diagnosed with 2nd degree frostbite. Ongoing medical reports confirmed an increase in swelling, blistering and decreased sensation.

...While you reported cold hands immediately to your employer, no medical was sought. No ongoing complaints were made and you reported a resolution of your symptoms on or around January 8, 2014. You experienced blistering, decreased sensation and swelling which increased in severity beginning January 14, 2014. For these reasons, I am unable to confirm that your ongoing difficulties are related to the accident of January 5, 2014. As such, we will be unable to take responsibility for your issues beyond January 5, 2014.

On February 4, 2014, the worker spoke with a WCB claims supervisor as he disagreed with the adjudicator's decision that he was not entitled to benefits. The worker later provided the WCB with a nine page submission outlining the events in January 2014 and the onset of his frostbite condition.

On February 5, 2014, a WCB medical advisor reviewed the file and provided the following opinion:

The effects of frostbite are usually apparent within 24 hours of thawing/rewarming. Edema (swelling) and blistering typically develop within 24 hours.

The acute sounding findings described at medical evaluation on Jan 15 2014 are not accounted for in relation to a cold exposure of ten days prior.

Significant hand symptoms and observed abnormalities would have been expected to have been noted when [the worker] met with his employer on Jan 14 14. Jan 20 2014 memo noted that "Worker indicated that afternoon (Jan 14) and into the night, he began to experience itching and burning sensation in his hands. His fingers started to blister and peel, and he suddenly lost sensation in his fingertips (was not an issue prior to this)." This would be inconsistent with a cold exposure of nine days prior.

In a decision dated February 18, 2014, the worker was advised that the new information was considered and that the WCB remained of the opinion that there was no causal connection between his ongoing hand difficulties and the January 5, 2014 incident. On February 24, 2014, the worker appealed the decision to Review Office.

On April 28, 2014, Review Office determined that the worker's claim for compensation was not acceptable as it was unable to confirm a workplace accident occurred based on the chain of events described by the worker. Review Office referred to a January 20, 2014 conversation with the WCB where the worker indicated that he initially felt a burning sensation in his hands for a couple of days and that his fingertips got white and his skin became harder. The worker indicated that his frostbite symptoms entirely resolved a few days later only to spontaneously recur on January 14. Review Office found that on a balance of probabilities, the evidence was insufficient to establish the worker's reported symptoms on January 14 occurred in relation to events arising out of and in the course of his employment. On May 1, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested medical chart notes from the worker's treating physician for the period January 15 to February 4, 2014 along with a medical opinion from an independent plastic surgeon regarding the worker's hand symptoms.

On January 21, 2015, the Appeal Commission provided the worker with the medical chart notes received from his treating physician and a copy of the independent surgeon's report dated January 19, 2015 and he was asked to provide comment. On February 4, 2015, the panel met further to discuss the case and to render a decision on the issue under appeal.

Reasons

ApplicableLegislation:

TheAppeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policiesof the Board of Directors. 

Subsection 4(1) of the Act provides:

4(1)      Where, in any industry within the scope of this Part, personalinjury by accident arising out of and inthe course of the employment is caused to a worker, compensation asprovided by this Part shall be paid by the board out of the accident fund,subject to the following subsections. (emphasis added)

 

The worker’sposition:

The worker was self-represented atthe hearing and was accompanied by his spouse. The worker described the events of January 5, 2014.  He was operating a semi-tractor trailer andwas returning home from a trip when he began to experience engine trouble.  He was forced to pull over and wait for a towtruck to arrive.  During that time, hesat in the cold, unheated truck for four hours, while wearing full winter gearand fur-lined suede gloves.  Thetemperature on that date was approximately minus 30 degrees Celsius with awindchill of minus 44 to 46. Subsequently, another driver stopped to assist the worker and drove himto a gas station.  The worker stayed atthe gas station for two and a half hours at room temperature while waiting forthe tow truck.

When the worker returned to hissemi-tractor trailer, he spent about one and a half hours outdoors to unhookthe trailer and then hook it to a new truck. He wore full winter gear, including the winter gloves.  After the trailer was hooked, the driverdrove for one hour in the warm heated cab. He then experienced further trouble with the trailer and spent abouthalf an hour in total (not continuously) using his hands to raise and lower thetrailer with a winch to hook it up.  Theworker had left his winter gloves behind in the broken truck so he used a toqueto cover the metal winch to protect his hands. The temperature was now in the minus 32°C range with a wind chill ofminus 47°C.

The worker submitted that hisfrostbite injury was definitely related to the cold exposure on January 5,2014.  He stated that he was not exposedto cold either before or after that date and the injury must have happened fromthose events.  He could not explain whythe symptoms seemed to take longer to appear. He just stated that this was what occurred in his case and that therewas no other exposure which could have caused the blistering for which hesought medical attention on January 15, 2014.

The employer’s position:

A human resources manager appearedon behalf of the employer at the hearing. The employer was in support of the WCB decision and submitted that theevidence did not support that an injury occurred as a result of the jobduties.  With respect to the facts, theemployer noted that they did not find any mitts in the first broken down powerunit.  The worker failed to seek medicalattention in a timely manner and there was no way of determining what theworker did or what occurred between the date of the supposed injury and thedate the worker actually sought medical attention.  It was the employer's position that the WCBruled correctly in denying the claim. The mechanism of injury did not fit the medical evidence related tofrostbite timelines.  Frostbite does notget better then become aggravated or worsen. The worker had identified an ability to be dispatched and was ready,willing and able to go back to work several days prior to an investigativemeeting called by the employer.  It wasnot until such time that the investigative meeting was held that the workersought medical attention.  It wassubmitted that what caused the need for medical attention was ambiguous at bestand there was no clear correlation with the events that occurred on January 5,2014.

Analysis:

The issue before the panel iswhether or not the claim is acceptable. In order for the appeal to succeed, the panel must find that thefrostbite in the worker's hands resulted from his job duties performed onJanuary 5, 2014.  We are able to makethat finding.

The evidence is clear that theworker did experience a significant exposure to cold arising out of and in thecourse of his employment.  The challengethe panel faced in considering this appeal was determining whether the jobduties performed on January 5, 2014 were the cause of the worker's frostbitesymptoms identified on January 15, 2014. While the worker's job duties involved exposure to extremely coldtemperatures with, at times, minimal protection to the hands, the delayed onsetof symptoms caused the WCB medical advisor to opine that the acute frostbitefindings described at a medical evaluation on January 15, 2014 could not beaccounted for in relation to cold exposure ten days prior. 

Following the hearing, the panelrequested an independent plastic surgeon with no previous involvement in theclaim to conduct a review of the medical evidence and provide his opinion.  The independent surgeon produced a four pagereport dated January 19, 2015 which stated the following:

What is the natural history of afrostbite injury?  The natural history isrelated to the depth of injury to the digits. It can range from minimal injury to Frank necrosis of all of the digitsrequiring amputation.  In thecircumstances described above the claimant clearly had a relatively severe caseof frostbite to the digits of both hands. The history and presentation is quite consistent with that.  Initially the tissues of the fingertip wouldhave been frozen and died.  The deadtissue creates a white protective insensate cap over the ends of thefingers.  Fluid then collects underneaththe dead tissue as the body attempts to get rid of it.  The dead tissue then sloughs off leaving apainful raw but viable surface underneath. Then, depending on the depth of injury, it will heal back over againover the course of a couple of weeks. The pain generally does not subside until the wounds have healedover.  The claimant's history isconsistent with same.  Initially he hadvery little pain but then developed significant pain after the dead tissuesseparated and came off.

The panel is of the view that theindependent surgeon conducted a thorough analysis of the medical informationand we see no reason to vary from his conclusion.  The independent surgeon is a specialist inreconstructive plastic surgery and as this is his area of specialty, we placegreater weight on this opinion over the February 5, 2014 opinion of the WCBmedical advisor, who is a general practitioner. 

The panel therefore finds that theworker's claim for frostbite is acceptable. The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 11th day of March, 2015