The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on May 9, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on July 24, 2017 reporting an injury to his left center toe following a workplace incident that occurred on July 4, 2017. The worker described the incident as:

We were moving furniture in the cabins. They asked us to take our shoes off. We were putting a wooden cover to hide the hot water tank back in place. It was an awkward piece and not much room to work. We were hanging onto it with our hands and pushing against it with our feet. As I was pushing against the piece of wood I am not sure if I stubbed my toe or I dropped the wood on my center toe but he (sic) nail got pushed back. It was quite painful at first. A couple days later some liquid came out of the area. The pain and redness continued to get worse. I had surgery on my other foot previous to July 4 and was putting more pressure on my left foot because of that. I tried wrapping the toe and put polysporin on it but it made no difference. My toe next to my center toe towards the big toe started to become red as well. The pain got to the point where it was waking me up at night so I asked if I could fly back to Winnipeg to see a Doctor. I flew out July 19.

The WCB contacted the worker on July 25, 2017 to discuss his claim. The worker advised the WCB that he initially didn't think much of the injury, and thought it was a stub type injury. He noted that his toe was red and after a few days it started to discharge. He self-treated it with an antiseptic cream and kept a bandage on it. He further advised that after four or five days, his toe started to look a little better but his second toe started to swell up and opened up due to infection. He advised the manager about his ongoing problem with his toes and requested more medical supplies to treat his toes. The medical supplies were requested and as they were located in a remote location, the supplies were flown in on the next plane. The worker advised he was speaking to the manager on July 16, 2017 about the possibility of flying out to seek appropriate medical attention. His situation was monitored and on July 19, 2017, he was flown to Winnipeg where he sought immediate medical attention at a local emergency room. The worker advised that he was seen by a doctor in the emergency room, sent for x-rays and provided with a prescription for antibiotics for ten days. He further advised that he was called back to the hospital the following day due to a possible infection in his center toe. He was advised at the hospital that he had the option of starting IV antibiotics at the hospital in Winnipeg or to return to his home province for continuing treatment. The worker advises he choose to return home and was provided with an oral antibiotic prescription before returning home on July 21, 2017. The worker did confirm to the WCB that he was diabetic.

The x-ray conducted on the worker's left toes on July 19, 2017 noted "There is some irregularity and loss of cortex involving the tuft of the distal phalanx of the third toe. The findings may be related to the presence of osteomyelitis. No other significant bone or joint abnormality is seen."

The employer filed their Employer's Incident Report with the WCB on July 26, 2017, noting the date of the incident as July 4, 2017 and that the incident was reported to them on July 15, 2017. The employer advised that while the worker discussed his condition with the camp manager, he did not mention that it was a work-related injury. The employer further advised that the camp manager was unable to confirm or deny that the workplace incident occurred as it was not reported to him and the worker continued to work his regular duties up to the time he left for medical attention.

On August 2, 2017, the WCB discussed the worker's claim with the employer. The WCB requested further information from the worker's coworkers, at which time the employer advised the WCB that it didn't make sense that the worker "…would be asked to take his shoes off based on the conditions they are working in." In response to questions from the WCB, one of the worker's coworkers advised that she was aware the worker injured his toe but had advised her that he stubbed it on his bed. The other coworker advised that he was also aware that the worker had injured his toe but he did not know what caused the injury.

The worker was advised by the WCB on August 3, 2017 that his claim was not acceptable. The WCB advised that as the worker had provided differing accounts of how the workplace incident occurred and his employer had not been able to confirm that an incident occurred, they could not establish a relationship between the worker's difficulties with his toes and an accident arising out of or in the course of his employment.

The worker's representative, on September 26, 2017, requested reconsideration of the WCB's decision to Review Office. The worker's representative disagreed with the WCB's position to not accept the worker's claim. The worker's representative noted that the worker may have provided two differing accounts for how the incident occurred but both were during work activities. It was also noted that the worker could not confirm the date he was injured. The worker's representative advised that the worker worked long hours and had initially thought the injury was minor so it was reasonable to expect that the worker could not pinpoint the exact date he was injured. The worker's representative also noted that as the worker initially considered his injury to be minor, he did not report it to the manager however, the injury was reported to the employer within the timeframe set out in the Act.

Review Office, in their decision of October 24, 2017, upheld the WCB's decision that the worker's claim was not acceptable. Review Office noted that there were inconsistencies with the worker's details regarding the workplace incident. The worker was not sure whether stubbing his toe or dropping wood on it was the cause of his difficulties. Review Office found that there was uncertainty on when the incident occurred as well as whether or not footwear was worn. Review Office also noted that the employer was not aware of a work related injury regarding the worker's toes. It was also found by the Review Office that the hospital reports did not provide a work related cause of the worker's difficulties with his toes. Review Office also noted that the worker's coworkers were aware of the worker's injury but one coworker was advised that the worker stubbed it on his bed and the other coworker did not know what caused the injury.

The worker's representative filed an application with the Appeal Commission on November 3, 2017. An oral hearing was held on May 9, 2018.

Reasons

Applicable Legislation

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

Subsection 4(1) of the Act provides:

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

What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes .

(a) a willful 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 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;

The worker is appealing the WCB decision that his claim is not acceptable.

Worker's Position

The worker participated in the hearing by teleconference. The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by the panel.

The worker's representative reviewed the evidence surrounding the injury. He noted that:

• the worker was moving a wooden cover from a hot water tank. 

• as he did this he stubbed his left center toe on the wooden cover. 

• the nail on his toe was pushed down by the cover. 

• the worker's toe became infected, partly because he suffers from Type I diabetes. 

• the worker was unable to leave the worksite which is at a remote northern location until an airplane arrived that could take him. 

• the worker attempted to treat his toe but it worsened.

The worker advisor noted that the WCB adjudicated the claim without speaking directly to the owner or other staff at the site. The information was provided by the employer's accountant who did not witness the incident or see the injured foot.

Regarding injury and the related medical, the worker advisor advised that:

• the worker was diagnosed with a diabetic foot infection and osteomyelitis. 

• the medical article from [name], which is on the claim file indicates that persons with this condition who sustain minor foot injuries can develop infection and potentially further serious complications. 

• the article from the [name] also supported the worker's condition; it indicated that osteomyelitis is a form of bone infection that can result from a small cut or open wound that provides the entry point for bacteria. 

• the noted articles support that having diabetes predisposed the worker to a higher than normal risk of infection.

The worker's representative also submitted that the evidence suggests the worker’s infection is not solely the result of his pre-existing diabetes. He noted that the July 20, 2017 infectious disease consultation report describes his diabetes as well-controlled, and that the worker reported no prior diabetic infection history. He also noted that the infection was limited to the distal phalynx of his second and third toes, which the worker was wrapping together to help with pain and mobility, further supporting that the reported accident was the initiating cause.

The worker advisor submitted that: 

the majority of evidence points to the worker sustaining an injury from an accident that arose both out of and in the course of his employment.

The worker confirmed that the job involved seasonal work at a remote northern site. It was his second year working at the site. He confirmed that he was in charge of maintenance for the entire facility and also assisted the manager of kitchen and maids when needed. He advised that of the scheduled 10 hours for maintenance per day it would be at least 80 percent of actual physical labour. In the start of the season, it was 100 percent.

The worker confirmed that in January, before returning to the site he had right foot (ankle) surgery and had been careful not to put too much weight on it. He said that when he arrived at the camp in May of 2017 it was normal.

With respect to the accident, the worker advised that he was performing repairs on the hot water tank in the cabin, and checking it out to make sure it was completely operational. Regarding the wooden wall which covered the water tank, he said that it might be 75 to 100 pounds in weight. The wall itself was two parts joined at a 90° angle. To move the wall, the corner was against his chest, with his left and right hands stretched to the far edges in order to move the wall.

He said in moving the water heater cover, he was trying to maneuver the piece up against one wall into the right position, and up against the other wall in the right position, while pushing the bottom in so it’s not sticking on the wood floor. This required him to tip the wall side to side and shuffle it forward to work it into position a few inches at a time. His toes came into contact with the wall a number of times and he was unsure if it was the banging of his toe or the wall going up and down which hurt his toe. He said he was not wearing shoes because the water heater was in an area wear staff are not to wear shoes.

He advised that initially he did not have an open wound, but it was swollen. Later it became pussy. The worker said that two toes became infected. Regarding the second toe he explained:

I didn’t think that was actually possible, but the doctor had told me at the hospital that, yes, likely the contact, direct contact with the toe beside it is what caused the infection, is what he believes.

Anyway, so it became infected as well. Well, it became sore and swollen, and it became an open sore after a while as well, which, then I had to wrap both toes separately, was treating them both.

The worker explained that initially there was a shortage of medical materials at the facility for treating the injury. Additional materials were obtained but when it became apparent that it was worsening he had to depart by airplane to get medical treatment. He advised that it took several days for him to get a flight.

Employer Position

The employer was represented by a director of the employer firm. He stated:

I can just state right from the outset that we don’t have any concern or investment in whether or not [worker's] claim is allowed. We just provided the information that we had, which is why I’m here.

In reply to a question, the employer representative agreed that the task, as described by the worker, could result in an injury.

Analysis

The worker appealed the WCB decision that his claim for injury was not acceptable. For the worker's appeal to be approved, the panel must find that the worker was injured by accident arising out of and in the course of his employment. The panel was able to make this finding.

The panel finds, on a balance of probabilities, that the worker's claim is acceptable. The panel accepts the worker's description of the accident and finds that the injury arose out of and in the course of the worker's employment.

The panel is satisfied that the trauma to the toe, as described by the worker, can lead to infection in the environment of a pre-existing lifelong medical condition. The panel finds that the noted articles support this finding.

The panel also notes that the employer representative agreed that an injury to the foot could occur give the task the worker was performing in the cabin on that day.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of June, 2018