LA COMMISSION D'APPEL EN MATIÈRE
DE LÉSIONS PROFESSIONNELLES
QUEBEC MONTREAL, December 16, 1994
APPEAL DISTRICT
OF MONTREAL BEFORE COMMISSIONER: Me Mildred Kolodny
REGION: Montreal ASSESSOR: Dr. J.P. Brault
FILE: 39621-60-9205
: CSST FILE: 1005 92609HEARING HELD ON: March 3, 1994
TAKEN UNDER ADVISEMENT ON: March 28, 1994
BRP FILE: 6089 3478 At: Montreal
MR. JOHN BOTTER
4721 Nuckle
Pierrefonds (Quebec)
H9J 3P7
APPELANT
and
J. PASCAL INC.
1170 Peel #330
Montreal (Quebec)
H3B 4T2
INTERESTED PARTY
D E C I S I O N
On May 29 1992, Mr. John Botter (the worker) appealed a majority decision rendered on April 14 1992 by the review office of Montreal (the review office) In its decision, the review office dismissed the contestation of the worker and maintained a decision rendered on September 24, 1991 by the Commission de la santé et sécurité du travail (the Commission). The Commission declared that the worker did not suffer from an occupational disease.
OBJECT OF THE APPEAL
The worker is asking the Commission d'appel en matière de lésions professionnelles (la Commission d'appel) to declare that he suffered an occupational illness and he is entitled to an income replacement indemnity from October 1989 until he reaches the age of 68.
THE FACTS
The worker, aged 60 at the time of the hearing, was employed as a salesman by J. Pascal Inc. (the employer) from 1949.
For 1950 to 1985 he worked as a salesman on the road. In 1973, he was diagnosed to have diabetes mellitus. This disease was controled by diet and oral medecine. In 1983, the worker was hospitalized for a cellulitis infection of the right leg. He recovered and returned to work.
In 1985, the worker was transferred to the Furniture Division of the employer as an inside salesman. His work now required him to be on his feet all day. He worked 40 hours a week.
In January 1986, the worker suffered from callouses on his feet and in April he was readmitted to hospital with a swollen right foot. The diagnosis was that of a peripheral neuropathy caused by the diabetes mellitus. This condition is described by Dr. Jack Cohen as a lack of sensation in the distal aspect of the feet, a condition which can cause easily callouses, ulcers and infections.
Dr. Sam Lerman in a report submitted dated March 6, 1992, describes this condition in the following manner:
«Patients affected with sensory neuropathy of the feet, are therefore, unable to sense pressure brought to the soles of the feet while standing and walking. Whereas an healthy individual will sense noxious pressure to the soles of the feet, and unconsiously and continiously shift weight to redistribute the pressure from area to another, the diabetic is unable to- for the reasons mentioned. As a result the prominent weight bearing areas of the feet such as the "ball of the foot" endure prolonged weight-bearing pressure. The natural response to this is the development of thickned skin over the high pressure, wear-and-tear surfaces. This results in callous formation. While a protective structure in non-diabetics, this callous, hard as it may become, serves as a cutting edge that digs into the tissue below it as the patient continues to unconsciously bear weight at this point. A so called "neuropathic" ulcer is the result. With continued pressue, the ulcer may reach the underlying bone and result in bony deformities. Eventually such ulcers become infected, leading to local infections, more extensive infectious such as ascending cellulitis and infection of the underlying bone (osteomyelitis) or in some to grangrene, eventually resulting in amputation of whole limbs. A well recognized rule is that such ulcers will rarely heal on their own unless the patient ceases weight-bearing by remaining off their feet for prolonged periods of time.»
Dr. Lerman, in the same report, refers to the worker's condition in the following way:
«Mr Botter has been a "sitting duck" for these complications. He has unquestionably had sensory diabetic neuropathy of the lower extremities since 1983. His job as a salesman at that time, and until his recent retirement, forced him to be on his feet almost continuously. This resulted in the continuously application of weight-bearing forces to areas of the feet that subsequently developed callous and ulceration by the process described above. Whereas he should have remained off his feet while these ulcers were treated and in the process of healing, Mr Botter returned to work each time, so that it is not surprising that these ulcers became recurrent and chronic. Furthermore, it is no surprise that since he resigned from his job and a stroke left him less mobile, that the ulcers have healed and not recurred.»
Following debridement and resection of the large toe, the worker returned to work at the end of April 1987. In 1988, he was transferred to the employer's store on Côte-Vertu, which has a floor space of over 75,000 square feet.
The worker developed another cellulitis, which is an infection of the soft tissue, of the left foot on November 3, 1988.
In May 1989, the worker developed another large ulcer and by October 1989, a severe infection. He was admitted to hospital on October 18, 1989, had a resection of infected bone of the first, second and third toes and of surrounding skin.
The worker hasn't worked since October 1989. He wanted to return to work in January 1991 but was advised against it by his doctors. Therefore, he resigned from his position at the employer and claimed his pension.
It is noted as well that the worker suffered a mild stroke which left him incapacitated from February 1991 to April 1991
Both Dr. Jack Cohen and Dr. Sam Lerman say that the worker cannot return to a job which requires him to stand on his feet and walk all day. Dr. Lerman in his report, concludes as follows:
«Mr. Botter, as a result of diabetic neuropathy and the continuous application of pressure to the feet, the latter a direct result of nature of his work as a salesman, developed recurrent ulcers of the feet that led to numerous hospitalisations and partial amputation of the toes of both feet. Had Mr. Botter's job not required him to be on his feet for any significant period of time, it is likely that these ulcers would not have developed. It is also my opinion that should Mr. Botter resume the same work, that these ulcers would surely begin to appear again for all of the reasons mentioned. Finally, since the neuropathy is a permanent condition, he is permanently at risk for the development of foot ulcers and as such the disability is a complete and permanent one.
In conclusion, Mr. Botter has a chronic condition, diabetic peripheral neuropathy, predisposing him to the development of foot ulcers. He should therefore be considered as permanently impaired. The degree of permanent impairment is 100%. The repeated aggravation of this condition in the past can be directly attribuable to the nature of his work, the latter providing the continuous weight born pressure to the insensitive feet that results in breakdown of the tissues of the feet and then infection.In effect, Mr. Botter will never be able to return to his regular employment lest he risk the certain return of these foot ulcers, infections and perhaps loss of limb.»
Dr. Cohen testified at the hearing and repeated the history of the case. He responded however that the worker would have been less likely to have developed these ulcers if he had a sitting job but that he might have developed mild ulcers anyway. He noted that people with diabetes have poor healing power. He believes that the ulcers are the direct consequence of the type of job the worker was doing and so he advised the worker against returning to work in January 1991.
When he examined the worker on February 8, 1991, one last small ulcer was noted. There were no more ulcers in January 1994.
Dr. Cohen also indicated that people who have diabetes frequently develop peripheral neuropathy and that people with peripheral neuropathy very often develop ulcers on the feet. However, people without the peripheral neuropathy would not be likely to get these ulcers even if they stay on their feet for 8 to 10 hours a day. Dr. Cohen indicated that the problem is complicated by the double factor of the difficulty of healing because of the diabetes and the fact that the patients do not feel the sensation of pain. Dr. Cohen also replied that people with peripheral neuropathy, doing sedentary jobs may also develop these ulcers but people who stand on their feet would be more likely to get larger and more serious ulcers. The problem is directly related to the amount of time that pressure is put on the feet.
The worker's wife testified that the worker's present life style is quite sedentary.
ARGUMENT
The worker's representative argues that the worker suffered an aggravation of a preexisting personal condition and he is asking for an income replacement indemnity from the date of the last radical operation, that is, October 25, 1989.
She alleges that the risk particular to the job of a salesman is that of standing on one's feet for long periods of time. She argues that Section 30 of the Act respecting industrial accidents and occupational diseases [R.S.Q., chapter A-3.001] (the Law) applies and that the worker suffered an occupational disease directly related to the risks of the job of a salesman.
To support her position the worker submitted the following jurisprudence:
- Hétu et Brasserie Molson [1988] C.A.L.P. 276,
- Parent et Emmanuel Lapointe [S.R.C.] 376
- Bellerose et Manufacture de vêtements St-Félix Inc. [1990] C.A.L.P. 1255
- Barrière et Provigo (division Héritage) 08011-62-8806, 90-01-31, S. Di Pasquale
- Centre Hospitalier de Gatineau et Savard 05853-07-8712, 90-10-24, F. Poupart
- Lafrenière et E.& E. Salsberg Inc. [1990] C.A.L.P. 1367
- Cannistraro-Libertella et G. Moscato Inc. 07980-60-8806, 90-04-23, S. Di Pasquale
- Complaisance et Manufacture W.C.I. Ltée [1990] C.A.L.P. 649
- Moores et Transport Daily Canada Inc. [1991] C.A.L.P. 116
- Laberge et Lasalle Automobile Inc. 31446-62-9108, 93-08-02, F. Poupart
- De Schutter et Garderie Les Copains d'abord 18168-60-9004, 93-08-27, L. Boucher
- Boisvert et Construction Bérou Inc. 29841-62-9106, 93-09-29, L. McCutcheon
- General Motors du Canada Ltée et Bissonnette 09800-60-8810, 35698-60-9112, 93-12-13, Robichaud.
The representative alternatively pleads that the worker suffered micro traumatisms and raises the argument that the employer must take the worker in the particular condition that he is even though this constitutes a greater risk.
DECISION
The Commission d'appel must decide if the worker contracted an occupational disease.
The worker is pleading Section 30 of the Law which reads as follows:
«30. A worker having contracted a disease not listed in Schedule I out of or in the course of employment and not as a result of an industrial accident or of an injury or disease caused by such an accident is deemed to have contracted an occupational disease if he satisfies the Commission that his disease is characteristic of work he has done or is directly related to the risks peculiar to that work.
He argues that the particular risks associated with the job of a salesman are standing and walking for long periods at a time. The worker is arguing that this activity aggravated a preexisting personal condition of peripheral neuropathy and diabetes, and caused an occupational disease of foot ulcers.
He is alternatively arguing Section 2 of the Law in the sense that he suffered micro traumatisms which aggravated his personal condition, and therefore was a victim of an industrial accident.
These provisions are defined as follows:
2. «Industrial accident" means a sudden and unforeseen event, attributable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him.
2. «Occupational disease» means a disease contracted out of or in the course of work and characteristic of that work or directly related to the risks peculiar to that work.
The worker is also pleading the «thin skull rule» that is, that the employer must take the worker with his personnal condition. This rule states that the author of the damages must assume the risks inherent in the quality or the personality of the victim.
The first question to be answered is responsibility. Once this has been established, then the claimant is entitled to compensation. If the wrong is established, the wrongdoer must take the victim as he finds him. This however is only true on the condition that the wrong is established or admitted. The question of liability is anterior to the question of the measure of the consequences which go with the liability.
According to the jurisprudence, the author of the accident must be held entirely responsible for the prejudice resulting from at the same time the predisposition and the accident, if it can be proved that, without the fault, the damage would not have happened.
This matter is discussed by the Privy Council in the case of Hay or Bourhill and Young [1943] A.C. 92, p.109, 110:
«The present case, like many others of this type, may, however, raise the different question whether the appellant's illness was not due to her peculiar susceptibility. She was eight months gone in pregnancy. Can it be said, apart from everything else, that it was likely that a person of normal nervous strength would have been affected in the circumstances by illness as the appellant was? Does the criterion of reasonable foresight extend beyond people of ordinary health or susceptibility, or does it take into account the peculiar susceptibilities or infirmities of those affected which the defendant neither knew of nor could reasonably be taken to have foreseen? Must the manner of conduct adapt itself to such special individual peculiarities? If extreme cases are taken, the answer appears to be fairly clear, unless, indeed, there is knowledge of the extraordinary risk. One who suffers from the terrible tendency to bleed on slight contact, which is denoted by the term "a bleeder", cannot complain if he mixes with the crowd and suffers severely, perhaps fatally, from being merely brushed against. There is no wrong done there. A blind or deaf man who crosses the traffic on a busy street cannnot complain if he is run over by a careful driver who does not know of and could not be expected to observe and guard against the man's infirmity. These questions go to "culpability not compensation": as Bankes L.J. said in the Polemis case (1). No doubt, it has long ago been stated and often restated that if the wrong is established the wrongdoer must take the victim as he finds him. That, however, is only true, as the Polemis case (1) shows, of the condition that the wrong has been established or admitted. The question of liability is anterior to the question of the measure of consequences which go with the liability.
(1) [1921] 3 K.B. 560, p. 571.»
(In re: Polemis and Furness, Withy & Co. Ltd.)
Therefore, one must first establish the responsibility of he who is being asked to pay the damages. Once that is established, the injured party is paid for all his damages regardless of the portion of contribution of his personal condition to those damages.
Therefore, before the thin skull rule can be applied in employment injuries, the injury suffered must be attributable to a breach by the employment of some duty owed to the worker. In the Polemis case cited in the case above, it was stated that to determine whether an act is negligent it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent.
The Commission d'appel believes that the thin skull rule is only applicable when there is something unusual and extraordinary in the work that might cause harm or injury to any worker but where the consequences of such injury are more severe in a «handicapped» worker.
In such a case, the «handicapped» worker is entitled to full compensation, notwithstanding his personal condition.
When the injury occurs, the worker must be in the process of performing an activity at work which puts a demand on his body over and above the demands of ordinary daily activities of living, such as sitting, standing, walking, bending, lifting etc. It is only when the work necessitates the performance of these activities in an unusually strenuous manner, that these activities risk causing injury.
In some situations walking can be a risky activity. Walking at a forced accelerated pace, and/or while carrying heavy weights and/or on an uneven, hard or wet surface, over prolonged periods of time, can, in some cases, cause injury. Walking under those circumstances is an activity out of the ordinary.
But walking casually at one's own pace, without carrying excessive weights, on a regular even indoor floor, is not in itself an injury-causing activity.
Therefore in the present case, it cannot be stated that the activity of walking at work, as described, put an excessive obligation by the employment upon the worker. A reasonable person would not forsee that this activity would cause foot injuries.
Therefore, the Commission d'appel concludes that since the worker did nothing more than execute the normal function of his work and that there was nothing unusual or extraordinarily difficult about the work that would normally cause injury, the work cannot be held responsible for his injury. There being no fault nor responsibility, the worker is not entitled to any compensation under this rule.
With reference to the worker's argument under section 30, that his injury is directly related to the risks peculiar to his work, it is admitted that the job of a salesman requires a certain amount of walking. Here too, the same arguments apply as to the thin skull rule.
One must distinguish between the aggravation of a personal pathology caused by the particular risks of the work and an incompatibility between the characteristics of the work and the personal pathology.
It is not sufficient that the personal pathology comes in conflict with the requirements of the job, when, were it not for the existence of this pathology, the nature of the work would not usually cause any problem.
It is somewhat like someone who develops pneumonia, and goes out in the cold weather to go to work and then gets worse. Can one attribute the aggravation of the pneumonia to the employment, when the worker should have stayed home?
The word RISK is defined in Websters Ninth New Collegiate Dictionary as:
«Possibility of loss or injury; a dangerous element or factor»
The activity of walking is a normal one, engaged in by everyone with no inherent risk or possibility of injury. It is not known to be likely to cause a particular disease or injury to workers engaged in that activity. If it is a normal activity and does not cause harm to a normally healthy worker, it cannot be called a risky activity.
In this case, the amount of walking was not so extraordinary as to cause a normal person, without the neuropathy, to develop foot sores or ulcers. Dr. Cohen testified that a worker without the peripheral neuropathy would not likely to have developed this disease, and only someone with the neuropathy would develop these ulcers. He also testified that the neuropathy, as it progresses, with even a normal amount of walking, could result in ulcers and that the activity of walking without the neuropathy would not cause the ulcers.
Dr. Cohen also testified that people with peripheral neuropathy can also develop foot ulcers even if they do sedentary work.
Therefore, the Commission d'appel finds that Section 30 does not apply because the activity of walking, although characteristic of the work of a salesman, is not a dangerous one in this context and would not cause an otherwise healthy worker to develop these ulcers. In the present case, the disease is not the ulcers. The disease is the peripheral neuropathy without which the ulcers would not have appeared. It is obvious that this disease itself is not characteristic of the work of a salesman.
Dr. Lerman in his report stated that this type of condition, that is the diabetes and the peripheral neuropathy would likely cause cellulitis. The worker had a manifestation of cellulitis in 1983, even before he changed jobs from that of a travelling salesman to that of an indoor salesman. Therefore, it is evident that the personal pathology caused some symptomatology even before the worker changed functions.
Regarding the worker's argument that he was the victim of an industrial accident because he suffered micro-traumatisms while walking, which aggravated his personal condition, again the same reasoning applies. A worker is the victim of an industrial accident only when the injury is caused by an extraordinary or accidental event.
As stated before, in the present context, the activity of walking cannot be defined as micro-traumatic. Therefore the definition of an industrial accident, which is defined in the law as being a sudden and unforseen event, does not apply.
It is also argued that since the worker has stopped working and therefore stopped walking, that the ulcers have disappeared. This is understandable considering that the worker is now aware of his condition and is prudent and has limited his activities, particularly since his stroke. One cannot dismiss the fact that it took at least two years from the time the worker stopped working until the last known ulcer was still noted.
The Commission d'appel does not consider the fact that the ulcers have now healed to be a true test of cause and effect of this particular disease.
The Commission d'appel therefore concludes that the disease of foot ulcers is not characteristic of the work of a salesman nor is it directly related to the risks peculiar or particular to that work.
The Commission d'appel also concludes that the worker was not the victim of an industrial accident caused by the micro-traumatisms of walking.
The Commission d'appel also concludes that the worker cannot benefit from the thin skull rule because in the context of the present case, the activity of walking was neither extraordinarily difficult nor demanding to be in and of itself a cause of injury.
Therefore, the injury, not having been caused by an accident or event nor by a risky activity, cannot be attributable to the employment. Since the employment is not responsible for the injury, the worker cannot claim compensation.
FOR THESE REASONS, THE COMMISSION D'APPEL EN MATIÈRE DE LÉSIONS PROFESSIONNELLES:
DISMISSES the appeal;
CONFIRMS the decision rendered on April 14, 1992 by the Review office of Montreal.
Mildred Kolodny
Commissioner
Me ILLEANA EDELSTEIN
Bell, Rudick & Ass.
1155 René-Lévesque Ouest, #3404
Montreal (Quebec)
H3B 3T3
(Representative of appellant)
.
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.