The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on April 19, 2023 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 January 29, 2021, reporting an injury to their feet/toes that occurred at work on January 21, 2021. The worker described:

The cold weather caused me to sustain frostbite to two toes on each foot. I was outside filling propane tanks and loading bulk bags. I was driving the forklift in and out of the warehouses…This caused me to sustain frostbite to my feet. I have to wear lighter boots when working on the forklift in order to operate the machine. I also had two pairs of socks on.

The worker noted that they reported the incident to the employer on January 22, 2021 but continued to work as it was really busy at work and they hoped their toes would get better.

On January 28, 2021, the worker attended for treatment at a local hospital emergency department, reporting one week of pain to their second toes on both feet. They reported they had sought other medical treatment and were provided with medication but were not improving. The worker advised they worked in a very cold warehouse, where their feet would sweat in their work boots and their toes were often very cold. The attending physician noted redness and swelling to the worker's second toes on each foot, with no lacerations or pus, and diagnosed the worker with chilblains. The physician recommended the worker keep their feet warm and dry, and change their socks frequently if their feet were getting sweaty, and provided a note stating the worker was unable to work in a cold environment for two weeks.

The employer provided the WCB with an Employer Injury Report on January 29, 2021. The employer noted they were not aware an incident occurred and were only provided with a doctor's note indicating the worker should take two weeks off work.

On February 1, 2021, the WCB contacted the worker to discuss their claim. The worker advised they had worked with the employer for seven years and had not had issues with their feet previously. The worker confirmed they normally worked 10 to 11 hour shifts, with 90% of that time spent in the unheated warehouse, and they dressed in layers for work in the cold conditions. The worker further advised that their feet started aching at work on January 21, 2021, and took a long time to warm up, and when they did, they started to feel a tingling sensation. The worker also indicated they had a virtual (telephone) visit with their family physician on January 25, 2021, who did not look at their feet, but indicated they might have gout.

The worker further advised that they continued to experience pain and attended a hospital emergency department around midnight on January 27, 2021 because of the pain. The worker indicated they had no history of problems with their feet or frostbite but had a history of type 2 diabetes. They were placed off work for two weeks by the attending emergency physician, and their last day worked was January 26, 2021 as their employer did not have work available in a heated area. The worker also provided contact information for a co-worker who was aware of the worker's difficulties.

The WCB also spoke with the employer on February 1, 2021. The employer confirmed their warehouse area is unheated and the worker performed approximately 90% of their duties in that area. The employer noted they advise workers to dress appropriately for the temperatures and the worker had complained of their feet being cold for awhile. The employer advised the worker's last day worked was January 27, 2021, where they worked a full day and had not indicated they were seeking medical treatment. When asked if they could accommodate the worker's temporary restriction of not working in a cold environment for two weeks, the employer advised they could place the worker in an area with a propane heater, which would be a semi-heated place.

On February 3, 2021, the WCB contacted the employer to gather further information. The employer advised there was a difference of approximately 10 degrees Celsius between the warehouse and the outside temperature, and probably closer to a 20 degree difference in the area where they had propane heaters. The employer also advised that other workers had commented about the temperatures, whether hot or cold, but there was nothing specific like the worker's complaints of cold feet and ongoing symptoms.

The WCB also contacted the worker on February 3, 2021, who provided details regarding the type of footwear they wore at various times, but could not confirm which work boots they were wearing from January 21 to 28, 2021. On the same date, a list of temperatures for the area from January 17 to 28, 2021 was placed on the worker's file. The worker also provided the WCB with photographs of their affected toes and advised they would be returning to work on February 8, 2021.

On February 4, 2021, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's current diagnosis was perniosis, also known as chilblains, of the second toes of both feet. The medical advisor noted that the exact cause of perniosis is unclear, and it may be the result of a primary disease, a consequence of that primary disease, or a disease of unknown causes (idiopathic). The advisor went on to opine that:

Prolonged exposure to the cold, insufficient protective clothing, and circulatory or cardiovascular diseases may also be causative factors. Tight clothing may decrease blood flow to the affected area causing a decrease in the skin's temperature. Some cases are believed to be caused by genetic factors. Other suspected causes include nutrition, local infection, hormonal changes, and other systemic diseases…

On February 10, 2021, the WCB's Compensation Services advised the worker that they had determined their claim was not acceptable as they could not directly relate the worker's foot difficulties to their employment.

On March 4, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that the WCB did not request specific information regarding the temperature rating for their footwear, which they indicated was to -40 degrees Celsius, and submitted that their claim should be accepted as their foot difficulties were a result of their work.

On March 5, 2021, the WCB received a copy of a Doctor First Report for the worker's virtual appointment with their family physician with the date of examination listed as February 1, 2021. It was noted in that Report that the worker described "Cold work environment…" and reported the second toes on both of their feet had been sore for "…about 2 weeks," with no injuries, but they were "really cold at one point and froze a bit." The worker reported there was no redness, swelling, or blistering, but the toes were a bit tender when touched. The physician noted a diagnosis of cold feet and recommended topical medication. The date of incident on the Report was noted to be January 11, 2021.

The WCB also received a Progress Report from the worker's family physician on March 5, 2021, with a date of examination noted as February 1, 2021, and the date of incident noted to be January 25, 2021. The physician noted in the Report that the worker's toes were improving and the worker would be returning to work on February 8, 2021. On March 16, 2021, the WCB's Compensation Services advised the worker that the new medical information had been reviewed but there would be no change to their decision that the claim was not acceptable.

On March 24, 2021, the worker provided photographs of the work boots they wore while performing their job duties. On March 30, 2021, Review Office returned the worker's file to the WCB's Compensation Services for further investigation. On April 1, 2021, the WCB contacted the worker's treating physician's clinic to confirm the dates of treatment. The clinic confirmed the worker had telephone visits with the physician on January 25, 2021 and February 1, 2021.

On April 6, 2021, the worker provided the WCB with clarification on their activities and duties prior to the January 21, 2021 workplace accident. On April 9, 2021, the employer provided details of the worker's hours of work prior to January 21, 2021 and noted the worker had worked a normal amount of overtime at that time. The employer also advised they were not certain of the date the worker first complained of issues with their feet but noted the worker advised that their feet were bothering them, and they had a lump or something but were not sure what it was. The employer further confirmed the worker worked mostly on concrete surfaces. On the same date, the WCB advised the worker that further information had been gathered, but after reviewing that information, there would be no change to the decision that their claim was not acceptable.

On April 26, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted they developed frostbite at work and their claim should be accepted. On May 6, 2021, Review Office contacted the co-worker the worker had identified, to discuss the job duties. The co-worker confirmed the worker made complaints of cold feet/toes while at work and they were performing similar job duties at the time. The co-worker advised that it was busy on the day the worker complained of having cold feet and the worker loaded five trucks that day.

On May 21, 2021, Review Office determined the worker's claim was not acceptable. Review Office found the causes of the worker's diagnosed condition were varied and possible employment-related causes were explored, but concluded that an accident arising out of and in the course of the worker's employment could not be established.

On January 24, 2023, the worker appealed the Review Office decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On July 26, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies established by the WCB's Board of Directors. The applicable legislation is the Act as it existed at the date of injury.

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

What constitutes an 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.

The WCB's Board of Directors has established Policy 44.05, Arising Out of and in the Course of Employment, with respect to determining whether an accident is related to a worker's employment. The Policy states, in part, that:

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 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.

Worker's Position

The worker represented themselves on the appeal. The worker's position was that they sustained a workplace injury in January 2021 when they froze the second toes on both of their feet while operating a forklift at work, and their claim should be accepted.

The worker submitted that the employer told them on the day of the incident that they had to load five semi-trailers which had to get back to the city with their loads by 4:00 p.m. that same day so they could be loaded on the railway. The worker said they had worked for the employer for several years and did most of the loading generally, but had never before loaded five semi-trailers in a row. The building they worked out of was cold, and they were using a forklift which had no cab and no heat. They worked as fast as they could and got all five semi-trailers loaded, with no help from anyone else, but never really had a chance to warm up during that time.

The worker said they went into the front of the building after they had finished loading the trucks, pulled their boots off, and noticed the toe beside the big toe on both feet was frozen. They reported this to the secretary and their boss was also there. The worker said they finished their shift and went home. Their toes started hurting, the pain gradually got worse, and by approximately 9:00 that night they told their spouse that they had to go to the hospital. The doctor who saw them in the hospital emergency department said they had frostbite on their second toes, and gave them a note to take two weeks off work and a prescription to dull the pain.

The worker stated that the date of accident is the day they went to the hospital emergency department, being January 27, 2021. The worker noted that they had experienced pain or a strain in their toes prior to that date as a result of standing on cold cement floors at work, and had sought medical attention from their family physician for that reason. Their toes, however, had never felt numb like this before the date of accident, and the pain on the night of the accident was different from what they had experienced before. The worker described the pain they felt earlier from standing on cold cement was like an ache, while the pain from the accident was like being stabbed in the toe.

The worker noted their time cards showed they did not work for ten days following the January 27, 2021 accident and visit to the emergency department. They went back to work after ten days as they could not afford to be off work any longer. The worker noted their toes are still not right; they still feel numb and cold all the time and they have had difficulty finding work as a result.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of their employment. The panel is able to make that finding for the reasons that follow.

Based on our review and consideration of all of the evidence which is before us, the panel is satisfied, on a balance of probabilities, that the worker suffered an injury to the second toes of both feet as a result of their exposure to the cold at work on January 27, 2021 and their claim is therefore acceptable. In arriving at our decision, the panel notes that the specific date of the workplace incident is unclear. While the worker referred to the date of incident in their Worker Incident Report and at various other times as January 21, 2021, the panel is not satisfied that the evidence supports that an accident occurred on that date.

In this regard, the panel notes that chart notes provided by the worker's family physician at the panel's request following the hearing confirm the worker had a telephone consultation with their family physician on January 25, 2021, at which time the physician noted the worker indicated both of their second toes had been sore for about two weeks. The physician noted that there were no injuries, that they were just "really cold a few weeks ago" and had been "a bit sore since." No particular incident was identified and no diagnosis was provided, although the physician subsequently noted a diagnosis of "Cold feet" in the Doctor First Report dated February 1, 2021 but filed March 5, 2021.

The worker explained at the hearing was that they had consulted their family physician on January 25, 2021 because they had pain or "toe strain from standing on cement all day long," and they remembered talking to their physician "about that, and that my feet were cold." The panel notes that the worker continued working their regular duties from January 21 through to January 27, 2021. In the circumstances, the panel is unable to find that the worker suffered an injury by accident arising out of and in the course of their employment on or before January 21 or 25, 2021.

As previously stated, however, the panel is satisfied, on a balance of probabilities, that the evidence supports the worker suffered an injury to the second toes of both feet while operating a forklift and loading trucks at work on January 27, 2021. In reaching this conclusion, the panel places weight on the following:

• The worker described loading five semi-trailers in a row by themselves on the date of the accident, using a forklift, and indicated they had never loaded this many trucks at a time in the seven years they had been employed with the employer. The evidence shows that the worker was required to perform this work within a very tight timeline, and did not have an opportunity to warm up while performing these duties.

• The list of temperatures for the area from January 17 to 28, 2021 shows that the temperature on January 27, 2021 was much colder than earlier in the month and ranged from a high of -22 degrees Celsius to a low of -31 degrees Celsius that day.

• The evidence shows the worker had to wear a smaller boot on the forklift for safety reasons and because there was insufficient space on the forklift for heavier footwear. The worker advised that the smaller boot was not as warm as the boot they would wear in the warehouse when performing other duties for the employer.

• The worker's position that they sustained an injury on that date is supported by the evidence of their co-worker, who confirmed to the WCB on May 5, 2021 that the worker complained to them of having cold feet/toes while at work, and they believed that was in the last week of January 2021 or so. The co-worker further confirmed that they were performing similar work at the time, and on that particular day, there were five semi-trailers lined up to be loaded by forklift and sent to the railway, it was a busy/steady day, and the worker loaded all five trucks by themselves.

• The employer has not disputed the work the worker was performing on January 27, 2021, and the worker's time card for the period of January 22 to February 4, 2021 shows that the worker's last day worked was January 27, 2021.

• The worker's toes started hurting after work on January 27, 2021, and the pain gradually got worse, such that by approximately 9:00 that night they had to go to the local hospital emergency department. The worker described the pain at that time as being very different, like being stabbed in the toe, and much more severe than what they had experienced before.

• The Hospital Emergency Report confirms the worker attended the hospital emergency department that same evening, and was assessed by the attending physician shortly after midnight on January 28, 2021, who diagnosed the worker with chilblains and provided a note indicating the worker was unable to work in a cold environment for two weeks.

• As the employer was unable to accommodate the worker's restriction, the worker remained off work after January 27, 2021 for ten days.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of their employment. The worker's claim is therefore acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of September, 2023