The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim was acceptable. A hearing was held on June 15, 2017 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB on August 9, 2016, for an injury to his right foot with the accident date of August 4, 2016. The worker stated:

I was wearing steel toe boots, I developed a lump in my foot. I thought at first it was just a blister, felt like a bubble. Wearing steel toed boots, the heat and friction. I guess the boot rubs against my foot all day. I usually change my boots every 6 months. I'm in them about 9-10 hours each day. I wear them all day.

The Employer's Accident Report dated August 9, 2016 indicated that the worker did not report an injury to his right foot. A first aid report stated that the worker had a bandage applied to his right foot on August 5, 2016 at 11:00 a.m.

On August 10, 2016, the worker advised the WCB that he noticed he was walking funny on August 4, 2016. He reported it to his supervisor and was told to go to the emergency response area. They removed his boot and a blister was found by his right fifth toe. On August 8, 2016, he went to a quick care clinic and was referred to a hospital facility to have the wound looked at. The hospital facility checked his foot and opened the wound up to drain and clean out the infection. The worker advised that he changes his work boots every six months and his employer provides a boot allowance. He said he is careful with the footwear he gets, including socks and insoles. The worker noted that he had bought a new pair of boots about three weeks earlier. They were not the ones he typically bought, as that make and model had been discontinued, so he had to get something different. He was a diabetic and was managed with medication.

On August 10, 2016, an employer representative advised the WCB that the worker had been back at work for three shifts following two weeks of holidays when he filed his claim. The employer was concerned that the blister or wound might have developed while the worker was off work. In a further conversation on August 24, 2016, the representative stated that the employer replaces work boots on an as-needed basis, as frequently as the employees require. The boots must be CSA approved and have a metatarsal guard.

In a decision dated August 24, 2016, Compensation Services determined that the worker's claim for compensation was not acceptable. The worker was advised that the current file information suggested that the injury to his right foot was caused by the fit/function of his foot inside his work boot. He and his employer had confirmed that this aspect of his footwear was left to his discretion. Any injury resulting from the fit of his work boot would not be considered to have arisen out of his employment as the employer had no control over the fit and comfort aspect of his work boot. It was entirely the worker's personal choice when obtaining appropriate footwear. As the requirements of subsection 1(1) of The Workers Compensation Act (the "Act") had not been met, the claim was not acceptable.

On October 17, 2016, a worker advisor submitted to Review Office that they were seeking a reversal of the WCB decision to deny the worker's claim for a right foot injury. The worker advisor submitted that the claim was acceptable on the basis that the worker's right foot injury (two ulcers over the mid-fifth metatarsal bone) arose both out of, and in the course of, his employment. The worker advisor stated:

As for whether his injury arose out of employment, we submit it did on the basis of his work boots being the hazard, which he is required to wear due to the nature, conditions and obligations of his employment.

On November 29, 2016, Review Office found that the worker's claim for compensation was acceptable. Review Office stated that it found sufficient file evidence to support that the worker sustained an injury while in the course of his employment. Review Office found that on balance, the worker's purchase of the boots was done in an effort to meet the employer's requirement and as such established an employment connection.

Review Office noted that the worker developed a blister on his foot while carrying out his regular work duties after returning from holiday. The worker worked in a plant environment and was on his feet for 9 to 10 hours per shift. Review Office indicated there was no evidence the worker had any problems with his foot prior to his return from holiday. The diagnosed blister was a predictable outcome for a person wearing new boots, irrespective of the boots' fit. Review Office concluded that the worker's injury arose out of his employment and that the Act's definition of accident was satisfied.

On December 13, 2016, Review Office wrote the employer and stated:

The Review Office conducted further investigation, including… phone interviews of the worker and the first-aider.

The first-aider confirmed that the first date of treatment was in fact August 4, 2016 (consistent with the worker's accident report), and that the worker's foot did not appear to have been treated prior to that afternoon. The first aider changed the bandage he applied the day previously on August 5, 2016.

The Review Office accepts the first-aider's statement as evidence the worker sustained a blister while at work on August 4, 2016, and in doing so notes that this is consistent with the worker's accident report and the general facts of the case. The Review Office confirms our prior decision…

On December 15, 2016, the employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

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

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

WCB Policy 44.05, Arising Out of and in the Course of Employment states, in part, as follows:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

Section A.7 of WCB Policy 44.05.20, General Premises, addresses the subject of personal hazards, and reads as follows:

7. Personal Hazards:

a. To be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (i.e., is connected in a causal sense).

b. The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:

i. The injury was the result of a personal action by the worker and was not caused by a:

* a hazard of the premises; or, 

* an occurrence under the control of the employer.

ii. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection.

Employer's Position

The employer was represented by its Safety Manager. The employer's position was that the worker's injury did not arise out of or occur at work, and the employer's appeal should be allowed.

It was submitted that the fit and function of the worker's work boots was based on personal choice and was outside the control of the employer. While company policy requires everyone to have CSA approved work boots inside the workplace, this is a requirement under workplace safety and health legislation as well. The employer issues boot slips to enable employees to replace their boots as needed, and employees normally replace their boots twice a year. Apart from requiring that they have CSA approved work boots, the employer does not force employees to buy any particular boots or to purchase their boots at any particular location.

The representative stated that the employer was not completely convinced that the incident or injury actually occurred at the workplace. It was submitted that the injury could have happened while the worker was on vacation, before he came back to work on August 4. Further, while the injury was said to have occurred on August 4, it was not reported until August 5; there was no original incident report and no written proof that it occurred on that date. The August 5 first aid report indicated that the foot was re-bandaged that day. If the injury occurred on August 4, the worker should have reported it immediately, as prescribed by the union contract and company policy.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation to the panel on the worker's behalf. The worker's position was that the evidence supported that his compensable injury, described as a pressure sore to the right lateral foot, was causally connected to his employment, and the claim was acceptable.

It was noted that the worker's job involves working long hours on his feet in an environment of extreme heat. Due to the nature and conditions of the work, the employer requires that the worker and other employees wear safety footwear, and issues boot slips for that purpose. If the employer was not controlling the purchase of the footwear, it was at least significantly influencing it, by directing the worker to a specific location where he could satisfy the employer's criteria, at seemingly no cost to him.

The worker advisor submitted that there was no evidence to support the employer's suggestion that the injury might have happened earlier or elsewhere, outside of work. It was submitted that the evidence showed that the worker was not aware of an injury until August 4, while at work, when the injury affected his walking ability. The first-aider who treated the worker advised that he bandaged the worker's right foot on August 4, 2016, that there was no prior bandaging on his foot, and that he re-bandaged the foot on August 5.

The worker advisor noted that on August 10, the employer representative informed the adjudicator that the worker had worked three shifts following a two-week vacation prior to filing the claim. The same day, the worker advised the adjudicator that he had only purchased his work boots three weeks earlier, and they were not the ones he usually bought as those had been discontinued.

In summary, it was submitted that the evidence supported that the worker's right foot injury arose both out of and in the course of his employment. Specifically, the employer-mandated safety footwear, combined with working long hours standing and walking in a high heat environment, caused a sore to develop on a part of the worker's foot that would appear to be a natural friction point.

Analysis

The issue before the panel is claim acceptability. For the employer's appeal to be successful, the panel must find that the worker's right foot injury did not arise out of or in the course of his employment. For the reasons that follow, the panel is unable to make that finding.

It is clear that the worker works in an extremely hot environment. The worker's evidence at the hearing was that he worked 10 hour shifts, starting at 6:00 a.m. He does a lot of walking on the job, not only in his own area, but also going upstairs and downstairs. He said that he has to keep moving quickly, because he is working with people in front of him. The employer did not dispute the worker's evidence in this regard.

The worker said that he buys new work boots every six months. He said that he is very careful about his boots and socks. He usually gets boots with high ankle support, 2-3 inches above the ankle, because he does so much walking on the job. He buys lace-up boots, which he ties right up to the top. He wears his boots tight, as he does not want anything to splash into them. He wears wool socks, which enable his feet to breathe somewhat, and always has an extra pair of socks with him because his feet get so sweaty with the heat.

The worker's evidence was that he bought his new boots in June 2016, and went on vacation in July. He started to use the new boots a little before going on vacation. He came back to work on August 2, and had already worked two shifts by August 4, 2016. He was wearing the new boots on each of those days. On August 4, he noticed that he was starting to walk funny, and around 2:00 p.m., towards the end of his shift, he reported this to his supervisor who told him to go to the emergency response area.

Based on the information before us, the panel notes that a significant number of hazards, which would lead to the development of a blister or ulcer on the worker's foot, are present in the case, including:

• the worker works 10 hours a day in a very hot environment; 

• much of the worker's shift is spent standing and walking; 

• the worker wears work boots, as required, which he laces up tightly to prevent injury; 

• the worker's feet become very sweaty inside his boots; 

• the worker was wearing new boots on August 4, which had not yet been fully broken in.

In the circumstances, the panel is satisfied that the worker's injury arose out of employment, as hazards resulting from the nature, conditions and obligations of his employment.

The panel is further satisfied that the worker's injury occurred at work and in the course of his employment on August 4, 2016. The panel places weight on the worker's evidence that he noticed he was walking funny in the course of the day on August 4, 2016, and reported this to his supervisor towards the end of his shift. The panel accepts the worker's evidence that he was told to attend the emergency treatment area on August 4, where the first-aider noticed that the worker had a blister and bandaged his foot, and that he re-attended the next day, at which time the first-aider re-bandaged his foot. The worker's evidence was confirmed by the first-aider in a conversation with the WCB. This was confirmed to the employer in an email on December 12, 2016, which stated in part:

[First-aider] recalls filling out a note on August 4, and indicated they are looking for it now. He further advises that he clearly recalls treating [worker] on the 4th where he applied second skin and bandaged him (consistent with [worker's] recall). He stated there was no prior bandaging on the foot on August 4. He also recalled rebandaging the foot the following day, consistent with the August 5 note…

The panel finds that there is no evidence to indicate that the worker's injury occurred elsewhere or prior his return to work in August 2016.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right foot injury arose out of and in the course of his employment. The claim is therefore acceptable.

  The employer's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of August, 2017