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 was not acceptable. A hearing was held on December 5, 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 June 21, 2022, reporting an injury to their right foot and second toe that occurred at work on June 13, 2022. The worker described wearing steel toe safety boots at work and that their job duties required them to bend, which caused friction in the boots and resulted in injury to their right second toe. The worker described that “The steel toe part of the boot has worn something on top of toe. It is a callous that has become abscessed from the irritation. These are not new steel toes. I have been wearing them for approximately for 1 year.” The worker indicated they self-treated the injury over the weekend and after the symptoms worsened, they sought medical care and reported the incident to the employer on June 21, 2022.

The WCB received an initial doctor’s report for the worker’s appointment on June 20, 2022. The physician recorded the worker’s report of localized pain, occasional bleeding and pain when working as they were required to wear steel toe shoes, and friction from those shoes caused a callous that become abscessed. The physician noted tender, blood-filled nodules on the surface of the worker’s right second toe and recommended treatment with foot baths and antibiotic cream twice per day. The physician diagnosed a right second toe abscess and recommended the worker avoid wearing steel toe shoes for two weeks and undertake sedentary desk work until July 11, 2022.

On June 27, 2022, the employer submitted an Employer’s Accident Report to the WCB indicating the worker reported an injury to the top of their right toe, which caused an open wound and infection due to wearing steel toe shoes in difficult locations. The WCB contacted the employer on June 28, 2022 and the employer confirmed they reimburse workers for purchasing footwear and that the footwear purchased must be CSA safety certified.

When the WCB contacted the worker on July 4, 2022, the worker noted they had performed the same job duties for approximately 20 years and had purchased new steel toed boots in March 2022 but returned those boots to the retailer in May 2022 as they did not fit properly. From that point, the worker resumed using their previous work boots which were one to two years old. The worker also noted that due to sanitary concerns, they rotated their work boots. The worker described job duties that included “…crawling/maneuvering in tight spaces, which causes the top of the foot to rub against the steel shank of the shoe” and noted they spent 2 to 3 hours per shift in non-ergonomic positions. The worker further noted they treated the injury by soaking it in water and applying a bandage to limit rubbing but the bandage would come off during their shift. The worker advised that a coworker saw them take off their boots one day and noticed the worker’s foot was bleeding. The worker confirmed reporting the injury after obtaining medical treatment and learning that the toe was infected. The worker confirmed they followed the treating physician’s recommendation to avoid wearing steel toe boots for 2 weeks. The worker noted the callous was still on their toe but there were no ongoing signs of infection. They further advised they intended to purchase new steel toed boots and would ask their treating physician for recommendations.

On July 4, 2022, the WCB spoke with the worker’s manager who confirmed that the worker’s job duties involved working in tight spaces that required crawling and twisting of ankles and feet, and estimated the worker performed those duties 1 to 2 hours per day. The manager noted those duties were intermittent and may be required one day, but not the next day.

The worker followed up with the treating physician on July 6, 2022 reporting the callous was still red and occasionally tender but had not changed in size. The physician recommended continued use of topical antibiotics and a different type of work boot, and two more weeks of sedentary desk work.

On July 7, 2022, the WCB advised the worker that their claim was not acceptable. The WCB noted the employer was not in direct care and control of the footwear purchased by the worker and as such, the footwear was considered a personal hazard. As the injury to their foot was caused by the footwear purchased and worn by the worker, the WCB determined that injury was a result of a personal action by the worker and an accident arising out of or in the course of their employment was not established.

The WCB received further medical reports from the treating physician on October 13, 2022, noting their support for the worker’s claim and advising that the worker’s injury was caused by the employer’s mandated requirement for a specific type of footwear. On the same date, the WCB also received a July 14, 2022 report from the worker’s physician indicating the worker was cleared to return to work, wearing the required footwear, with no restrictions as of July 18, 2022.

On October 21, 2022, the WCB again wrote to the worker advising that after review of the new information, there was no change to the decision their claim was not acceptable.

The worker provided the WCB with information regarding the safety footwear required by the employer on December 15, 2022 and on January 4, 2023, the WCB again advised the worker the information was reviewed and there was no change to the earlier decisions.

On February 13, 2023, the worker requested Review Office reconsider the WCB’s decision, noting the employer also supplied steel toe rubber boots for workers to use when they go into rooms that have machinery but may be wet. The worker noted their injury may have been caused by the wearing of those boots and submitted that the claim should be accepted. On March 22, 2023, the employer’s representative provided a submission in support of the WCB’s decision to Review Office and the worker responded on April 21 2023.

On May 3, 2023, Review Office determined the worker’s claim was not acceptable. Review Office noted the worker had been performing the same job duties for approximately 20 years, with no change in their duties and had made no previous complaints of similar difficulties. Further, Review Office agreed that the purchase of, type, and condition of the footwear used by the worker to perform their job duties was not in the care and control of the employer and although the worker was in the course of their employment when the injury occurred, that injury did not arise out of their employment and the definition of an accident was not met.

The worker’s representative filed an appeal with the Appeal Commission on June 28, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has sustained “personal injury by accident arising out of and in the course of the employment”. Section 1 of the Act defines accident as a chance event occasioned by a physical or natural cause, or a wilful and intentional act that is not the act of the worker, or an event or condition, or a combination of events or conditions, related to the worker's work or workplace, that results in personal injury to a worker.

WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Policy”) provides general information on the meaning of the phrase "arising out of and in the course of employment," and 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 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.

… Accidents arising out of purely personal sources over which the employer has no control are generally not compensable. Even if an accident occurs in the course of the worker’s employment, when a worker is engaged in personal activities not related to or required by his or her employment the resulting injury would not be compensable. However, if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission in the hearing and relied upon a written submission delivered to the Appeal Commission in advance of the hearing. The worker offered testimony through answers to questions posed by their representative and by members of the appeal panel.

The worker’s position is that they sustained an injury to their right second toe because of friction caused by their steel toed boots while in the course of their job duties. As it is a job requirement that the worker wear steel toed footwear while at work, this injury arises out of their employment. As such, the evidence supports a finding that the worker sustained a personal injury as a result of an accident arising out of and in the course of their employment, and the claim is therefore acceptable.

The worker advisor further submitted that even if the panel finds that the initial injury does not meet the definition of a compensable accident, when the worker continued to work after the initial injury, wearing the required steel toed footwear caused the injury to become infected and an abscess to form. This aggravation of the initial injury, the worker advisor submitted, could be accepted as a compensable injury.

The worker testified that they keep their work boots at work and change into the boots on arrival at work, and out of the boots and their socks at the end of the day. It was on changing out of their boots at the end of a workday that the worker noted their right second toe was bloodied. The worker described alternating their boots between two pairs and using the employer’s provided rubber boots when working in wet areas. The worker noted that the rubber boots are stored in various areas through the work site and that when needed, the worker will pick out and wear a pair that is available, which may not be in the worker’s specific shoe size.

The worker recalled first noticing that their toe was red and irritated in early June 2022. They self-treated by soaking in a salt bath and cleaning the foot at home and wrapping the toe with a bandage in the morning to protect it through the day.

The worker described that their job duties vary from day to day and involve various body positioning. When bending, the worker noted, their steel toe boots don’t adjust or bend with the foot.

Employer’s Position

The employer, through its advocate, provided a written submission in advance of the hearing, but did not attend the hearing.

The employer’s position as outlined in their written submission is that the evidence does not support a finding that the worker’s toe condition arose out of and in the course of their employment. The employer’s representative noted there were no changes in the worker's job duties, which they had been doing for 20 years, that could account for the development of the foot injury. The advocate noted that although the worker is required from time to time to work in awkward positions, this is not new.

The employer’s advocate confirmed that the employer provides an annual allowance for the purchase of footwear which must be CSA safety certified, but the employer has no control over how frequently such footwear is purchased nor the type or condition of the worker’s footwear. The employer is not in direct care and control of the worker’s footwear purchases nor of their decision to wear older footwear.

The employer’s advocate submitted that there is no evidence of a cause-and-effect relationship between the worker’s employment activity and the development of their foot condition. For this reason, the panel should determine that the worker’s claim is not acceptable.

Analysis

This appeal arises from the WCB’s decision that the worker’s claim is not acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker was injured as a result of an accident arising out of and in the course of employment. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The panel noted the evidence that the worker sustained an injury to their right second toe while in the course of their employment. The worker testified that they first noted the injury at the end of the workday while in the onsite locker room, when changing their footwear before heading home. Although the worker did not at first seek medical treatment but attempted to self-treat what appeared to be a relatively minor injury, they did seek appropriate treatment when that injury became infected and an abscess developed, as confirmed by their treating family physician in their report to the WCB of June 20, 2022 and confirmed in their report of October 13, 2022. We are satisfied that the evidence confirms that the worker’s injury arose in the course of employment in that it arose within the time of employment in the employer’s premises while the worker was performing work duties or an activity incidental to their employment.

With respect to the question of whether the injury arose out of employment, the panel considered that the treating physician reported this to be the case and that the subsequent workplace restrictions imposed by the physician refer directly to the need to avoid steel toed footwear. The physician’s report supports the worker’s position in this regard.

The WCB’s decision that the claim was not acceptable was not based on any evidence that the injury did not arise out of the worker’s employment but rather a determination that the worker was engaged in personal activities in choosing their own work boots and therefore the worker was somehow outside of their employment obligations when the injury occurred. The panel considered whether this is consistent with the Policy. We note that the Policy provides that even if an accident occurs in the course of the worker’s employment, when a worker is engaged in personal activities not related to or required by his or her employment the resulting injury is not compensable; however, the Policy goes on to outline that if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.

Here, the WCB found that although the employer required the worker to wear steel toed footwear while on the job, any injury the worker sustained because of wearing that footwear was the result of a personal choice as the employer only reimbursed the worker for their footwear purchase but did not select the specific boots or shoes purchased. The panel noted that the Policy refers not to personal choice but to accidents arising out of purely personal sources or when a worker is engaged in personal activities. We do not agree that the worker was engaged in personal activities when they put on, wore, and removed their work boots while at work. We are satisfied that the conditions or obligations of the worker’s employment required the worker to have steel toe footwear on while at work. The evidence indicates that that the worker sustained injury to their right second toe while and because of wearing those boots. Further, we do not find it relevant that the worker had been wearing those boots on earlier occasions, or that the worker’s job duties were unchanged from the usual on the date the injury occurred. The Policy states clearly that “if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.” That is the case here.

The panel finds that the employer’s requirement that the worker wear steel toe boots, whether their own, or the provided rubber boots, more likely than not contributed to the development of and aggravation of the worker’s right second toe injury. The evidence before the panel does not support a finding that the worker’s injury to their right second toe was a result of any activity or event or cause other than the worker’s workplace activities, undertaken while wearing employer-mandated footwear.

Based on the evidence before the panel and on the standard of a balance of probabilities we are satisfied that the worker sustained an injury on June 13, 2022 arising out of and in the course of their employment. Therefore, the worker’s claim is acceptable, and the appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 21st day of December, 2023