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 hearing was held on December 4, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The employer filed an Employer’s Incident Report with the WCB on January 4, 2023, reporting an injury to the worker’s left heel that occurred at work on September 27, 2022. The employer noted the worker reported to them their heel was blistered and requested to wear alternate footwear to their safety boots during work hours, which the employer allowed subject to the worker not doing any physical activity and monitoring their heel.

On January 17, 2023, the WCB contacted the worker to gather information about their claim. The worker advised the WCB the date of the injury was August 27, 2022 and confirmed they developed a blister just above their left heel as a result of wearing their work boots on that day. The worker noted the boots they wore that day were not new, that they had had them for over a year and a half and they were well broken in. Further, the worker noted they self-treated the blister with the first aid kit supplied by the employer and they did not report the injury initially as they felt it was just a blister, had scabbed over and was healing well. The worker noted the injury had taken longer to heal as they had been diagnosed as diabetic. After seeking medical treatment at a local hospital around September 19, 2022 and being given medication to treat infection, the worker requested they be able to wear running shoes while at work due to the blister, which request was approved by the employer. The worker then attended for follow-up medical treatment on October 4, 2022, where they were placed off work from October 4, 2022 to October 10, 2022 due to the area around the blister being very sore. In November 2022, the worker noted being asked to perform job duties outside and instead of wearing the work boots that caused the blister initially, they choose to wear other footwear for 2 days. During that time, the worker noted the blister became irritated and infected again and the worker sought treatment at the local hospital due to increasing symptoms. The worker was then flown to a major trauma center where it was noted the infection in their left heel had spread and worsened and the worker had their left leg amputated to just above their knee. The WCB advised the worker that medical information would need to gathered in order to adjudicate their claim.

The WCB received chart notes from the local hospital for the worker’s attendance from September 19, 2022 to January 3, 2023. The notes for the worker’s visit on September 19, 2022 indicate the worker attended for treatment for an unrelated injury. For the worker’s attendance on November 14, 2022, it was noted the worker presented ambulating with crutches and complained of an infection in their left foot and advised due to back difficulties, was unable to examine the back of their foot. X-rays taken that date found “no evidence of osteomyelitis”, the worker was diagnosed with a left diabetic foot ulcer and provided with antibiotic medications. The worker then attended on November 15, 2022 and November 16, 2022 for intravenous antibiotics with the physician noting on November 16, 2022 the worker had an “…infected diabetic foot ulcer” and ruptured blisters all the way up their leg. The main ulcer, over the heel, was noted to be “rotten” and was debrided. A week of dressing changes was recommended and with no improvement, surgical debridement was recommended. The worker then presented back at the emergency department on November 19, 2022, reporting worsening left lower leg symptoms, including pain, redness up to their knee, chills, sweats and fatigue. The worker was diagnosed with a “severe diabetic foot ulcer”, necrotizing cellulitis was queried and the worker was transferred to a major trauma center for further treatment.

The chart notes from the trauma center were received by the WCB on January 24, 2023. The notes indicated attempts were made to treat the worker’s left lower limb infection with antibiotics and debridement, however, a CT study on December 1, 2022 indicated the worker had an occlusion to their left femoral artery and on December 13, 2022, the worker underwent a left above knee amputation due to extensive debridement that left some of the worker’s muscle and bone exposed.

On February 2, 2023, the worker contacted the WCB for a status update on their claim. The worker provided the WCB with the name and contact information for a coworker who was present when the worker was changing the bandaging on their blister at work. The WCB spoke with the coworker on February 7, 2023, who advised they could not recall the specific date but noted when the weather began to get cooler in September/October of 2022, they had to wear warmer work boots and the worker complained to them of a blister they were getting on their left heel from their work boots as they were too warm and did not breathe. The coworker did note the worker treating the blister at work for several days after it developed. When asked by the WCB, the coworker noted they were not aware of the worker having any prior difficulties with their left foot. On February 16, 2023, the WCB accepted the worker’s claim and the payment of various benefits started.

The worker’s file was transferred to a WCB case manager who, on March 6, 2023, requested a WCB medical advisor review the worker’s file. On March 8, 2023, the advisor placed their opinion to file. The WCB medical advisor opined the worker’s accepted diagnosis was a left heel blister that started as a result of wearing a well broken-in work boot, however, the date of accident could not be confirmed with the worker reporting the blister developing on August 27, 2022 and the employer recording the worker’s reporting of the blister developing on September 27, 2022. The advisor further opined the worker’s current diagnosis was a post above left knee amputation. The WCB medical advisor went on to provide specific details to support their opinion the medical evidence did not support the wearing of work boots as the cause of the worker developing a left foot blister/ulcer. In addition, the advisor opined the worker had a significant poorly treated pre-existing condition that led to the development of an infection and later above knee amputation of the worker’s left leg. The WCB medical advisor opined the medical information did not support the worker sustained a compensable injury and a causal relationship between the worker’s job duties and their development of a left lower limb infection and later above knee amputation was not apparent. On April 6, 2023, the WCB advised the worker it had been determined their claim was not acceptable.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on May 24, 2023. The representative submitted the WCB’s original decision to accept the worker’s claim was the correct one based on the evidence on the worker’s file. Further, the representative noted that even if the worker’s development of a blister was not a compensable injury related to their job duties, the medical treatment and subsequent surgery the worker required would have been related to the worker’s pre-existing left heel blister and as such, the worker’s claim should be acceptable and they should be entitled to wage loss and medical aid benefits. The employer provided Review Office with a submission in support of the WCB’s decision on August 4, 2023 and the worker’s representative responded to the submission on August 15, 2023.

Review Office found on August 16, 2023, the worker’s claim was not acceptable. Review Office accepted and agreed with the opinion of the WCB medical advisor that the worker did not develop a left heel blister as a result of wearing work boots in August 2022 or September 2022. Review Office noted the worker developed further heel difficulties after wearing different footwear in November 2022, which irritated their blister and caused it to become infected. Further, Review Office noted the medical information on the worker’s file indicated the worker had significant pre-existing conditions, including a total left femoral artery occlusion that compromised the worker’s circulation in their left leg and the worker developed a left foot ulcer which became infected and led to an above knee amputation in December 2022. Review Office noted the infection occurred during a time when the worker was off work and as such, finds the ulcer and infection were not work related and the worker’s claim was not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on August 22, 2023 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 interested parties for comment. On April 22, 2024, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act") and its 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.

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

"accident", subject to subsection (1.1), includes 

(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) 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, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;

WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Arising 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.

The WCB has also established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Pre-existing Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Pre-existing Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as the temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition.

Worker’s Position

The worker was represented in the hearing by a union representative who made oral submissions on behalf of the appellant and relied upon a written submission provided in advance of the hearing. The union representative also provided a further written submission for consideration by the panel in response to the additional medical information obtained by the panel subsequent to the hearing. The worker provided testimony in response to questions posed by the union representative and by members of the appeal panel.

The worker's position is that the claim is acceptable and states that the initial adjudicative decision was correct. The worker's evidence is that they suffered an injury to their heel, which occurred as a result of their workplace activities. The worker submits that their reports of the injury have been consistent and points to the fact that their injury was corroborated by a coworker.

The worker's position is that the presumption under the Act applies given that the worker's injury to their heel was discovered at work and there is no evidence of an alternate cause. The worker submits that the accident arose out of and in the course of employment.

The worker's representative submits that the WCB medical consultant provided an opinion which was not in response to the question asked of them and in doing so, overstepped their role.

The worker also advanced an alternate position, and states that if the panel considers the blister to be a non-compensable pre-existing condition, then the worker submits that the work they did in early November 2022 was an accident that caused an enhancement of a pre-existing condition.

The worker argues that the evidence establishes that the worker had an injury to their left heel on September 27, 2022 and while it did improve, it never resolved, and got worse in November 2022 as a result of wearing insulated rubber boots. The position of the worker is that the blister and amputation are a consequence of the injury and therefore the claim ought to be accepted.

Employer’s Position

The employer was represented by its WCB Coordinator at the hearing, who provided a written submission in advance of the hearing and made an oral submission to the panel. The representative also provided a further written submission for consideration by the panel in response to the additional information obtained by the panel subsequent to the hearing.

The employer submits that the development of the left heel blister, which the worker states was caused by the safety boots they were wearing at the time the blister developed, did not arise out of the worker's employment, and the claim for compensation is not acceptable.

The employer submits that the claim is not acceptable as the worker chose their own safety boots and it was their responsibility to ensure the boots fit properly and are not worn out or need to be replaced. The employer further submits that the claim ought not to be accepted based on the delays in reporting the blister and the absence of any medical notes or reports that relate the development of the blister to the worker's footwear.

The position of the employer is that it cannot be confirmed on a balance of probabilities that the blister developed due to the performance of the worker's job duties.

Analysis

The issue before the panel is whether the claim is acceptable. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker was injured as a result of an accident arising out of and in the course of their employment. The panel is not able to make that finding in this case for the reasons that follow.

The worker's evidence is that the injury occurred at work, however no report of the injury was made until several months later, in January of 2023. Furthermore, there are inconsistencies in the timelines documented on the file. The worker's representative acknowledged these inconsistencies. The notes on file state that the worker advised the WCB that the injury occurred on August 27, 2022. The worker's evidence at the hearing was that this is not the case and the injury occurred on September 27, 2022. The worker advised the panel that he is unaware of where the date of August came from but the worker's representative suggests it was in error.

The inconsistencies regarding the timeline are further reflected in the medical chart notes from October 4, 2022 wherein the doctor states as follows: "2. Left heel ulcer, causing him troubles now for the last couple wks." The worker's evidence is that the date of the injury was September 27, 2022 however the chart notes indicate that the problem had existed for a longer period.

The panel has also placed weight on the November 16, 2022 chart entry of the treating orthopedic surgeon which indicated "Diabetic Foot ulcer" (sic) and "No injury".

Based on the foregoing and the review of the file, the panel cannot, on a balance of probabilities, establish that September 27, 2022 was the date the blister developed.

The panel further considered the language the treating doctor used in the October 4, 2022 chart notes that specifically note the reference to an ulcer instead of a blister, which may be indicative of the injury being present for a period longer than one week.

Furthermore, after considering all the available evidence, the panel is unable to conclude that the blister developed in the performance of the worker's job duties. The worker's evidence and the employer's evidence is that there was a request to wear runners due to a blister, however, there is a lack of evidence or specific mention or reference at that time that work boots had caused the blister.

The panel further considered the delay in reporting by the worker as the employer stated that no green card was completed at the time of the incident and that the employer did not know when the blister developed.

The panel has considered the evidence of the worker's coworker but notes that the coworker could not recall the specific date when he saw the worker treating his blister at work. Therefore, the panel finds there is a lack of evidence before it to indicate when the blister developed.

The panel has considered the alternative argument of the worker, and is unable to find that the worker had an accident or injury in early November 2022 that caused an enhancement of a pre-existing condition. The panel is unable to find that the blister that developed in or about September 2022 was a pre-existing condition. There is evidence that the worker's blister from September 2022 had healed sufficiently. The worker was off work from October 4, 2022 until October 10, 2022. There is no evidence that the worker had not healed when he returned to work on October 10, 2022. The evidence of the worker at the hearing was that the blister had scabbed over and was dry and not red. The worker's evidence was that he switched to his insulated steel toe rubber boots on or about the week of Remembrance Day. The worker stated that he didn't notice anything until that Sunday and states that he noticed the blister "was getting black behind - around it." The worker went to the hospital on the Monday, November 14, 2022. It is of note to the panel that there is no evidence that the worker missed any work the week prior to November 14, 2022. It is further noted that the worker did not make any report of an injury at that time.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury as a result of an accident arising out of and in the course of his employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of April, 2024