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 was not acceptable. A hearing was held on May 23, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker reported to the WCB on October 13, 2016 that he developed a foot fungus on both of his feet as a result of having wet feet for long periods of time while conducting testing at work. The date of the workplace incident was reported as October 7, 2016 and it was reported to his employer on October 11, 2016.

Chart notes provided by the worker's doctor dated October 7, 2016 noted that the worker had "Tinea on back of feet" and that the worker "May be allowed to go back to the hall now that pump testing has been completed." On a Doctor's First Report, provided to the WCB on March 8, 2017, the worker's doctor noted the area of injury as the worker's feet and the worker's description of the injury as "Tinea from prolonged submersion in water due to pump testing despite appropriate safety gear." The worker's doctor recommended that the worker be off work for seven days in order to apply an antibiotic cream and to keep his feet dry. It was noted that on the date of examination, being March 1, 2017, the worker's feet were clear and the issue had resolved.

On April 10, 2017, a WCB medical advisor provided the following opinion:

A family doctor's reports indicate a diagnosis of tinea on the back of the feet.

Tinea pedis is a foot rash caused by one of several possible dermatophyte (fungus) infections. Tinea pedis is caused by direct contact of the affected skin with the causative organism, as may occur by walking barefoot in locker rooms or swimming pool facilities. The fungus may also be acquired from other infected humans, animals, or soil. Moist feet for prolonged periods of time would increase the risk of acquiring tinea pedis.

In a follow-up telephone conversation with the WCB medical advisor on April 10, 2017, the WCB adjudicator confirmed that having wet feet, in itself, would not cause tinea pedis, exposure to the fungus itself was required. The WCB then confirmed with the employer on May 2, 2017 that the worker was working on an asphalt surface when conducting the testing.

The worker was advised by the WCB on May 2, 2017 that his claim was not accepted. The WCB advised that the information on the file did not support that the worker had direct skin contact with an organism that would have caused the fungus infection as a result of his job duties.

On May 12, 2017, the worker requested reconsideration of the WCB's decision to Review Office. The worker felt that the WCB had referenced incorrect information when making the decision on his claim.

Review Office contacted both the employer and the worker to obtain further information and on October 18, 2017, the WCB medical advisor, at the request of Review Office, provided a follow-up opinion based on the information obtained:

Having wet feet over a prolonged period of time does not cause tinea pedis as one would still have to come into direct contact with the dermatophyte involved. Good hygiene including thorough washing and drying of the feet and footwear may prevent tinea pedis from occurring in an individual who is healthy and without an immunocompromised condition.

Review Office determined on October 31, 2017 that the worker's claim was unacceptable. Review Office accepted the WCB medical advisor's opinion that while having wet feet over a prolonged period of time could increase the risk associated with getting tinea pedis, it was not the cause. Review Office noted that, as set out in the WCB medical advisor's opinions, there were multiple ways that someone could come in contact with the causative organism responsible for tinea pedis but it could not be established that the dominant cause for getting the condition was related to the worker's job duties.

The worker filed an application to the Appeal Commission on November 1, 2017. An oral hearing was held on May 23, 2018.

Reasons

Applicable Legislation

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.

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.

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

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; 

(b) peculiar to the particular employment; or 

(b.1) that trigger post-traumatic stress disorder; 

but does not include 

(c) an ordinary disease of life; and 

(d) stress, other than an acute reaction to a traumatic event;

Worker's Position

The worker was self-represented. He made a presentation and responded to questions from the panel.

The worker noted that he had provided materials to the Appeal Commission including: 

• An article on athlete’s foot (tinea pedis) 

• time sheets indicating the time that he was away from work due to the injury 

• photographs of the equipment he used in performing the duties.

The worker explained that he was assigned, for the summer of 2016, to pump testing which must be performed in accordance to regulation. Each machine in service must be tested regularly each year to make sure it operates properly. He also troubleshoots for any possible leaks, so that the maintenance crews can repair them and have them back into full service.

He explained the tasks involved in performing the test. He advised that he has to "hammer off" flanges and attach hoses. He said:

So when you’re hammering off all these six-inch mains, water flows out of these and onto you, that’s kind of an inevitable thing. There’s no way you can stand back and go, hey, tap it from over here. You’re eventually going to have to unscrew it, you’re standing right by it, water is pouring out onto you.

The worker explained that to conduct the tests he connects to a public water hydrant. He said that the water runs in a loop and that he gets wet at the start of each pump test when he connects the equipment and at the end. There is a third point if you have to change a gauge, which is wet but not “not really wet in your boots unless you’re sloppy”.

Later, the worker added that you can also get wet when disconnecting a hose from a water hydrant.

In reply to a question, the worker said that each unit that he tests, if working by himself, takes, start to finish, from two to three hours with troubleshooting.

While performing the tasks, the worker wears rubber boots and canvas coveralls. He advised that:

So all my boots would fill up on a regular basis, you drain them, but your feet are wet and soggy and, every day.

He said that:

At the end of the day if I had dry socks it didn’t really matter, but I had -- I drained my boots, put my sandals on to go home, and at the end of the summer I noticed I got, on the tops of my feet, and I’m wearing sandals today if you need an example.

Regarding the rash on his feet, he advised that he never had a rash on the bottom or sides of his feet, only on the top of his feet. He saw his physician who advised that he had “foot fungus.” She advised him take the time off, keep his feet absolutely dry, apply the cream three times a day and get something to keep his feet from itching. He also bought a medication and his feet cleared up in a week.

In reply to a question from the panel, the worker said he did not consider Athletes’ Foot to be an occupational disease.

The worker acknowledged that the water initially comes from a public water hydrant but:

But then at the end of the day it’s shut down, so it sits, and if it sits all weekend, it stinks like swamp water.

He added that foam, which is corrosive, is also added to the water.

The worker acknowledged that the water from the hydrant is the same water that people use in their homes. He suggested that if you let water go stagnant for any period of time, organisms will form.

He advised that his employer only provides one pair of rubber boots and therefore he did not have a spare pair of rubber boots to change into. He also used his steel toed boots on occasion. At the end of the day he would change into sandals by his vehicle. He said that the first symptoms he noticed were when he was sleeping in bed and his feet were itchy.

The worker denied going to a gym, public pool or using a shower at a public facility or at his workplace during the time when he was working these duties.

Employer's Position

The employer was represented by its Workers Compensation Specialist.

The employer stated:

So if I understand correctly, [worker] is relating, I’ll call it an injury, in this case, athlete’s foot, to an accident at work. And in this case, if I have it correct, the accident is getting wet.

He questioned whether the claim has been or should be adjudicated as an accident or an occupational disease, or an accident within the environment of a pre-existing condition.

The employer representative advised that he observed and participated in the entire process for one vehicle. He acknowledged that you can get wet performing the duties but that his observations, did not completely align with the information on the file or being referenced by the worker.

The employer representative also suggested that there are ways to mitigate getting wet:

What I’m saying is, you know, was there an opportunity to mitigate how much you get wet? Yes. Are you wet at the end, and that would be your opportunity to do the care of drying off, changing socks, maybe putting on a different pair of boots, et cetera, would all be ways of mitigating it.

The employer representative noted that the WCB's initial level adjudication stated there needs to be direct skin contact with the dermatophyte, and as such the claim was declined. He said that if the claim is adjudicated as an accident, the test is whether there was accident, whether there was an injury, in this case, athlete’s foot, and was the injury related to the reported accident. It was the employer’s opinion that the last test has not been met which would preclude entitlement to benefits based on the weight of evidence and balance of probabilities.

He noted that WCB Review Office appeared to have adjudicated the claim as an occupational disease. He noted that the Review Office discussed whether the job duties were the dominant cause of the diagnosis.

He noted that athlete's foot is not peculiar to or characteristic of the worker’s occupation. Rather it sounds like an ordinary disease of life.

Regarding the diagnosis, the employer representative commented that:

I think that, you know, there are just too many potential ways to acquire this and how common or prevalent it is, and recognize, and I think the medical science community would say that, you know, the typical approach here is, or how you get it is you have bare feet in showers, pools, gyms, that type of thing.

The employer representative acknowledged that it is plausible that the worker could get wet performing the job duties.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find that the worker's condition, athlete's foot, arose out of and in the course of his employment. In other words, the condition was causally related to the performance of his job duties. For the reasons that follow, the panel is not able to make this finding.

The worker's injury has been diagnosed as tinea pedis, also known as athlete's foot, which is a fungal infection of the skin of the foot. The worker's position is that the fungus was carried through the water and that it developed when he wore his wet boots. He said that working with wet feet in damp/wet boots over a prolonged period caused the condition. He suggested that the fungus might have come from the rusting, stagnant water left in the tanks of the trucks that he was testing. Regarding other possible areas of contact with the fungus, the worker denied that he attended a gym, or swimming pool or used the showers at work or in a public facility during the period that he developed the condition.

The panel examined the worker's job duties which he attributed to causing or facilitating the diagnosed condition. The worker's evidence is that he worked for prolonged periods with wet or damp feet. The panel accepts the worker's evidence regarding his job duties, for the purpose of adjudicating this claim.

However, upon considering all the evidence, the panel finds that the activities which the worker was performing would not be likely to cause the worker's athlete's foot condition. The panel notes that:

• the duties involved pressure testing tanks and related equipment. 

• the water which caused his clothing and boots to be wet came from a public water hydrant which is from the same treatment facility as the water used throughout the community, and is tested and drinkable.

The panel acknowledges the worker’s evidence that the water could become stagnant when left in tanks, such as the test vehicle, but does find this to be factor in this case. The panel finds that there is no evidence to support a finding that the water, which the worker was using in his tasks and which caused his feet to be damp and wet, carried the spores for the fungus. The panel does understand that when an individual walks barefooted in public places such as gyms, swimming pools, and showers, the water can conduct and facilitate the spread of the fungus which is introduced to surfaces in these facilities. As well, the panel accepts that having wet feet may increase the risks of acquiring the fungus. However, the panel finds it is speculative to suggest that the municipal water supply, itself, carries the fungus. Further, under questioning, the worker acknowledged that he did not walk barefoot in wet areas as part of his job duties.

The panel finds, on a balance of probabilities, that the worker's athlete's foot condition did not arise from his job duties and therefore his claim is not acceptable. The panel also finds that the worker's injury or ailment, is not an occupational disease for the purposes of the Act.  

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 5th day of July, 2018