APPEALS RESOLUTION OFFICER DECISION
decision NUMBER:
20230053
OBJECTING PARTY:
worker
REPRESENTED by:
self
RESPONDENT:
employer (not participating)
REPRESENTED by:
self
HEARING:
VIDEOCONFERENCE – march 15, 2023
HEARD by:
DATED:
l. mansueti, appeals resolution officer
MARCH 16, 2023
ISSUE
The worker objects to the Occupational Disease & Survivor Benefits Program (OD&SBP) Adjudicator decision dated October 3, 2022, denying entitlement to benefits for onychomycosis (fungal nail infection).
The worker is seeking entitlement to health care benefits.
BACKGROUND
On April 20, 2022, the worker observed his left foot was damp and moist and his toenails were soft and discoloured upon removing his safety boots at the end of the workday while on a work trip. The worker sought medical attention on August 17, 2022, and he tested positive for onychomycosis. He reported the incident to the employer on August 25, 2022. The worker was working as an Enforcement Officer, and he had worked with the employer for approximately 3.5 years.
The decision letter dated October 3, 2022 communicated there was no entitlement to benefits for onychomycosis on the basis a workplace exposure could not be identified. The worker objected to the October 3, 2022 decision. The operating area reconsidered and upheld the decision to deny entitlement to benefits, as per the reconsideration letters dated October 20, 2022 and November 22, 2022.
The worker continued to object to the October 3, 2022 decision, and this is now the issue before the Appeals Services Division (ASD).
AUTHORITY
Section 2(1), 13(1), 15 and 119(1) of the Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
11-01-03 Merits and Justice
15-03-05 Travelling
October 12, 2004
October 12, 2004
ANALYSIS
I have carefully considered all of the available information, legislation, relevant operational policies, and testimony in reaching this decision. For the reasons that follow, I find the worker is entitled to health care benefits for onychomycosis.
Review of the Evidence
As per the Worker’s Report of Injury (Form 6), the worker indicated that on April 20, 2022, his left foot was damp and moist and his toenails were soft and discoloured upon removing his work boots. The worker continued working their regular work duties, and they did not lose any time from work. He sought medical attention on August 17, 2022, and reported it to the employer on August 25, 2022. The Employer’s Report of Injury (Form 7), indicated the worker developed a left foot fungus on April 20, 2022, and it was reported to the employer on August 25, 2022. The employer confirmed the worker did not lose any time from work as a result of this condition, and he continued performing his regular job duties.
The record contains an undated medical note from Dr. K. McGregor indicating the worker tested positive for onychomycosis. The note states, “It is possible that this is from wearing his wet work boots in April 2022.”
The worker provided a statement to the operating area, as documented in memorandum A0006 dated September 28, 2022. The worker indicated their job involved working in an office environment as well as working in the field to inspect sites. He advised he would wear safety boots, which were provided by the employer, for site inspections. The worker explained his wore thick wool socks with his safety boots. On April 20, 2022, the worker was involved in a site inspection of a liquid natural gas facility. He indicated he was staying in a hotel while the inspection was being conducted. At the end of the workday, he noticed his toenails were soft and yellow. He did not recall his feet getting wet at work. As time passed, the discolouration did not go away. Over the next few months, the worker noticed the problem got worse, which prompted him to seek medical attention.
The worker testified he travelled to Province A, on a work trip to conduct a site inspection of a natural gas facility. He departed on April 19, 2022, and returned home on April 22, 2022. At the time of his departure, there was no issue or concerns with his feet. While in Province A, he stayed at a hotel, and he had his own suite. The worker stated he did not use the hotel gym or pool facilities while he was there, and he returned each night to his room. He indicated he walked around his hotel suite barefoot and he did not wear shower shoes in the bathroom.
The worker arrived at the hotel in the late afternoon on April 19, 2022, and attended the first day of inspection on April 20, 2022. The worker donned his uniform to perform the inspection, including cargo pants, safety boots and hardhat. He also wore heavy wool socks. The inspection involved checking riverbeds, fish habitat, checking for hydrocarbon leaks, and checking underwater acoustics. He testified he did not recall his feet getting wet during the inspection, but he advanced that it was possible his boots got wet considering he worked in and around water that day. Upon returning to his hotel suite after the workday, the worker indicated he removed his boots and socks and noticed his socks were wet and the toenails on his left foot were very yellow, soft, and insecure. He indicated he never had a condition like this before, and he denied having a previous nail fungus or athlete’s foot. He also denied having a health condition or autoimmune disorder that would make him more susceptible to developing a nail fungus. The worker indicated he had not changed his socks during the workday on April 20, 2022, as this was not something he typically did. The worker indicated in the days that followed, his toenails had dried out and the initial discolouration appeared to have improved. Overtime, the condition progressively worsened to the point where the fungus began eating away at the toenails. At this point, the worker sought medical attention, and he had tested positive for onychomycosis.
Assessment of the Evidence
The WSIB does not have a specific policy related to onychomycosis. When the condition or disease claimed is not listed in the Schedules and there is no specific WSIB policy, the decision is rendered based on the merits and justice of the individual case in accordance with the general provisions of the Act, as indicated in Operational Policy 11-01-03, which states, in part:
Decisions related to occupational disease
When determining entitlement to a disease claim, a decision-maker considers the worker’s clinical condition and exposure at work, the up-to-date clinical and scientific information, any pertinent non-occupational factors, and all of the relevant policies.
Entitlement to WSIB benefits and services is determined based on the merits and justice of the individual claim. It must be established that it is more probable than not the worker’s employment and/or exposure history caused or significantly contributed to the development of the medical condition for which benefits are being claimed. As such, the question to be determined is whether there is evidence of any workplace exposures that could have caused or significantly contributed to the development of the worker’s onychomycosis. If established, the above will generally be considered persuasive evidence that the worker’s employment made a significant contribution to the worker’s illness. A significant or material contributing factor is one of considerable effect or importance.
The worker submitted his employment made a significant contribution to the development of onychomycosis on the basis he was likely exposed to a fungal organism on or about April 20, 2022. He pointed to two significant contributing factors – the requirement to stay in a hotel suite while on a work trip and the requirement to wear safety boots, which were provided by the employer. The evidence in the record supports the worker was required to travel for work to complete an inspection in Province A, which took several days to complete. As such, the worker stayed in a hotel for the duration of the trip. Operational policy 15-03-05 states, in part:
Overnight accommodation
Entitlement under the Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act) extends to persons travelling in the course of employment to and from various places. Coverage also extends to accidents occurring in such places as hotels when the employer is paying the worker's expenses. The worker is covered should he suffer injury by accident at any time while in the hotel engaged in reasonable acts such as dining in the restaurant and using washroom facilities. If the worker chooses to dine in a restaurant other than in the hotel but within a reasonable distance of it, coverage is extended during this activity. There is no entitlement if the worker is injured while visiting a movie theatre or cocktail lounge or engaging in some other personal activity.
The worker testified he had his own hotel suite for the duration of his stay from April 19 to April 22, 2022. He indicated he walked around his hotel room barefoot, including the bathroom. I find it reasonable to accept the worker’s hotel stay was likely a contributing factor in the development of onychomycosis given hotel suites are communal spaces with a high footfall of guests that can create insidious mould growth, which is associated with highly contagious foot and nail fungus. As per the aforementioned policy, I find coverage under the Act ought to be extended in this circumstance, as walking around his own hotel suite and using the washroom facilities in the room (with or without footwear) are reasonable acts in keeping with the intent of the policy.
In addition, the worker submitted he wore safety boots to complete the inspection on April 20, 2022, which is required footwear provided by the employer. The worker advanced he wore the safety boots for approximately 8 hours on April 20, 2022, and he worked in and around water that day. He indicated the work boots created a warm, moist environment for toenail fungus. This was evidenced by the fact the worker’s sock was wet when he doffed his boots at the end of the workday, thus he believed he may have gotten his boots wet during the course of the inspection that day. I agree with the worker in that wearing safety boots in and around water likely contributed to the development of onychomycosis.
The worker submitted there were no outside non-work-related factors that could have reasonably caused or contributed to the development of onychomycosis given the fact there was a COVID19 provincial lockdown at that time, which would have limited his ability to contract a nail fungus outside of his home or work environments. He indicated besides travelling for work, he remained at home with his spouse and his son, neither of which had a nail fungus. He indicated his son’s hockey was cancelled, thus he was not engaged in coaching activities, and he did not frequent any shared locker rooms, spas, pools, or communal spaces during his personal time. In the absence of any non-occupational factors, it appears the worker’s onychomycosis was likely contracted while he was travelling for work.
In summation, based on the merits and justice of this case, I find it is more probable than not the worker’s employment and exposure history, including staying in a hotel suite on a work trip, wearing required safety boots, and working in and around water on April 20, 2022, significantly contributed to the development of the onychomycosis. As such, on a balance of probabilities, I find the worker is entitled to health care benefits for onychomycosis.
CONCLUSION
I conclude the worker is entitled to health care benefits for onychomycosis.
The worker’s objection is allowed.
DATED March 16, 2023
L. Mansueti
Appeals Resolution Officer
Appeals Services Division