The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits. A hearing was held on July 9, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

The worker is entitled to further benefits.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 121/17, dated August 10, 2017. The background will therefore not be repeated in its entirety.

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. 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. 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.

On October 17, 2016, the worker's representative 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's representative 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. On November 29, 2016, Review Office found that the worker's claim 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. The employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. On August 10, 2017, the Appeal Commission determined that the worker's right foot injury arose out of and the course of his employment and therefore, his claim was acceptable.

On May 16, 2017, the WCB advised the worker that after review of the clinical notes from his treating foot specialist noted that "…the right foot ulcer is healed with noted thick callous." A WCB medical advisor also reviewed the worker's file and provided the opinion that the worker's compensable foot ulcer/pressure sore had healed and it was determined he had recovered. As such, there was no further requirement for workplace restrictions related to his compensable injury. The worker contacted the WCB on May 23, 2017 and advised that a recurrence of his injury occurred.

The WCB received medical chart notes from the worker's treating foot specialist for an appointment the worker had on May 23, 2017. The foot specialist noted a "shallow ulcer (0.2 x 0.2cm)" under the worker's right fifth toe. The worker's thick callous was debrided and dressed and a note was made for the worker's insole to be readjusted. At a follow-up appointment on June 13, 2017, a thick callous was noted under the worker's right fifth toe, which was debrided.

On December 8, 2017, the worker contacted his WCB case manager to advise that his treating foot specialist had recommended that his right foot be casted to prevent further spreading of his injury and that he would have to be off work as a result. The WCB requested updated medical information from the worker's treating healthcare providers.

The worker's treating family physician provided a medical report on December 17, 2017. The physician noted that he had last seen the worker on October 30, 2017. The treating physician opined that the worker's prognosis for his compensable injury was good however, the prognosis for the worker to develop further foot ulcers was poor given that the worker had very poorly controlled diabetes. It was further noted that when the physician last saw him on October 30, 2017 "…he had a tiny "vulnerable area" (0.2 cm diameter) at the base of the previous ulcer. The skin has healed over but one can see a small area that is thin and could open up if not treated with caution. There is currently no ulcer present." The physician further noted that the worker's current foot issue was in the same location as his compensable injury of August 4, 2016 and that there were no additional open areas on the worker's right foot. The treating family physician provided his recommendation that the worker be limited to working only eight hours per day and that he be allowed to remove his work boots and check his feet on a regular basis.

On January 3, 2018, the worker's treating foot specialist submitted a report indicating that he examined the worker on December 5, 2017. The foot specialist advised that the worker "…presented with a right foot ulcer under the 5th MT (metatarsal) head with no evidence of active infection." It was noted that foot ulcers as a result of diabetes are recurrent and the ulcer was in the same location as the worker's compensable injury of August 4, 2016. The treating foot specialist further provided that there were no additional open sores found and opined that the cause for the worker's ulcer re-opening "…was possible with too much walking."

The worker's file was reviewed by a WCB medical advisor on January 15, 2018. The WCB medical advisor provided the opinion that the worker's current diagnosis was a "diabetic foot ulcer of the right foot" and that this diagnosis was related to the worker's poorly controlled diabetes rather than his compensable injury of August 4, 2016. It was noted by the WCB medical advisor that the worker had been given sedentary duties with preventative restrictions for his diabetic condition however, the worker had developed the current ulcer. The WCB medical advisor further opined that this indicated the worker was prone to developing the ulcers with his activities of daily living rather than just his job duties and as such, the WCB medical advisor could not relate the worker's current condition to the compensable injury of August 4, 2016.

On January 16, 2018, the worker was advised by the WCB that he was not entitled to further benefits as his current difficulties could not be related to his August 4, 2016 compensable injury. The worker expressed disagreement with the WCB's decision and requested reconsideration by Review Office on May 26, 2018.

Review Office determined on June 13, 2018 that the worker was not entitled to further benefits. Review Office placed weight and relied on the WCB medical advisor's opinion of January 15, 2018 that the medical information on the worker's file supported that he had recovered from the August 4, 2016 compensable injury and his current right foot condition was related to his poorly controlled diabetic condition. Review Office could not relate the worker's current condition to the compensable injury and found that the worker was not entitled to further benefits.

The worker's representative filed an appeal with the Appeal Commission on October 16, 2018. An oral hearing was arranged.

Reasons

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 by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: "… where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (the "Recurrence" Policy) sets out the principles to guide the WCB in distinguishing between a new and separate accident and the recurring effects of a previous injury or illness. It provides in part:

…The distinction between a new accident and the recurring effects of a previous injury or illness will be based upon whether the current loss of earning capacity is a consequence of the original compensable injury or illness or an intervening incident event, or exposure that contributed to the injury.

2. New Accident

The WCB will consider that the current loss of earning capacity results from a new and separate accident if the loss of earning has no relationship to a previous injury or illness. The current loss of earning capacity has no relationship to a previous injury or illness if the same body part or anatomical site as the original injury or illness is not injured or the worker’s condition is not consistent with the details of the accident and the diagnosis as established in the original claim.

If there was an intervening incident, event or exposure deemed capable of either causing the injury, or aggravating a previous susceptibility to injury, the WCB will also consider the current loss of earning capacity the result of a new and separate incident.

…

3. Recurrence

If the WCB determines that the current loss of earning capacity is not the result of a new and separate accident, then the current loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness.

A recurrence is a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity.

Worker's position:

The worker was represented by a worker advisor. It was the worker’s position that although the skin had closed after the original injury, the wound had not yet healed to its pre-accident condition when he experienced a recurrence of the original injury upon his return to work.

The worker provided an overview of the history of his injury. He described having sustained the original injury on August 4, 2016 when he noticed a blister on his right foot. The blister rapidly developed into two ulcers over the worker's fifth metatarsal which he submits stemmed from a combination of new work boots and an environment of extreme heat in which the worker was required to perform his duties. The healing of the injury was lengthy in duration and complicated by the worker's pre-existing diabetes.

The worker made a gradual return to work with restrictions in the spring of 2017. Although the skin over the ulcer had closed by this point, the skin was very thin. The worker’s restrictions expired in or about mid-May 2017. Within a week after his restrictions expired, the worker says the wound re-opened. Although the worker continued to work, he also continued to struggle with the wound. He was required to continue to seek treatment and regularly have the callous that had developed at the wound site debrided. The wound re-opened in September 2017 in the same location. Although the skin on the wound subsequently closed, it re-opened again in December 2017 at which point the wound progressed from an infected ulcer to a bone infection that required daily hospital attendance for IV antibiotics. In 2018, the worker was able to secure a different position that did not require him to be on his feet for long periods of time. The worker submits that it was the change in duties which was instrumental in allowing the wound to finally heal.

The worker took the position that it was the original compensable injury that continued to re-open between May and December 2017 and, as such, he ought to be entitled to further benefits.

Employer's position:

The employer was represented by an agent. It was the employer's position that the appeal should be dismissed. The employer referenced a number of the reports form the worker’s treating physicians, a number of whom had observed the skin on the ulcer to have closed. It was therefore submitted that the subsequent appearance of the wound in the same location was not a re-opening of a previous pressure wound, but a new injury in the same location. It was, in other words, a new accident, not a recurrence.

In the alternative, the appearance of the wound in the same location as the previous compensable injury was the result of the worker's long-standing and poorly controlled pre-existing condition, namely diabetes, which predisposed the worker to develop diabetic foot ulcers. The employer submitted that it was the worker's failure to become more compliant with medical treatment of his diabetes that caused or contributed to the development of new pressure wounds in the same location as the compensable injury. In other words, the new wounds were the result of untreated or uncontrolled diabetes and not the compensable injury.

In short, it was the employer's position that the worker's injury was either a new injury in the same location or an injury stemming from a pre-existing condition, neither of which entitled the worker to further benefits.

Analysis:

For the worker to be successful in his appeal, the panel must find, on a balance of probabilities, that the wound on the worker's right lateral foot is a consequence of the original compensable injury. For the reasons set out below, we are able to make that finding.

The worker suffered an injury to his foot in August 2016 which was accepted as a compensable injury. The injury began as a blister which developed into an ulcer. The ulcer eventually became infected and required medical assistance. Although medical reports indicate that the skin over the ulcer had closed, the same reports also noted that the wound remained vulnerable and was at risk of re-opening if the worker were to resume work too quickly. The factors identified by the worker’s treating practitioner as increasing the worker’s risk of the wound re-opening included excessive walking, standing, heavy lifting or pushing.

When the worker returned to work, he did so initially with restrictions. Within a week of the resumption of his regular work duties, including walking, standing, heavy lifting and pushing in a heated environment, a wound appeared in the same location as the previous compensable injury. Although the worker continued to work over the next several months, he continued to seek regular treatment for the wound including regular debriding of the callous that had developed at the site of the wound. Medical reports indicate that an open wound in the same location as the compensable injury was observed in September 2017 and again in December 2017. It was only in 2018, when the worker was able to secure a different position that did not require him to be on his feet for long periods of time that the worker ceased having wounds occur in the same spot on his foot.

Given the close proximity between the date the worker returned to unrestricted duties and the date an open ulcer was was observed in the same location as the compensable injury, we find that, on a balance of probabilities, the worker’s recovery from the initial compensable injury was not complete at the time that he returned to his pre-accident duties. As such, we find that the wound was a recurrence of the original injury and not a new injury.

Based on the foregoing, the panel finds on a balance of probabilities that the worker suffered a recurrence of his original compensable injury and the worker ought to be entitled to further benefits. The worker's appeal is therefore allowed.

Panel Members

K. Wittman, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of September, 2019