The Nova Scotia Workers’ Compensation Appeals Tribunal has directed a case manager to reconsider a worker’s claim that his requirement to wear steel-toed boots aggravated his pre-existing foot injury.
The worker, identified as [X] due to confidentiality, initially filed a claim in December 2017 after experiencing foot symptoms that prevented him from working. He attributed these symptoms to exposure to a sewer backup while showering aboard a shrimp boat in October 2016. The Board accepted his claim for bilateral foot infections, providing medical aid and temporary earnings-replacement benefits.
After treatment with prednisone and topical medications, the worker returned to work in April 2018, and his benefits ceased.
In 2020, the worker sought further compensation, reporting additional foot symptoms. However, on Jan. 26, 2021, a Board case manager determined that these symptoms were not a recurrence of his 2016 injury. Appeals to both a hearing officer and the tribunal upheld this decision, with the tribunal noting on Feb. 10, 2022, that it could not address the argument regarding the aggravation caused by steel-toed boots since it had not been previously adjudicated. The tribunal stated the worker was “at liberty to raise this argument at the Board level.”
Following this guidance, the worker’s adviser submitted a request on March 11, 2022, arguing that the job requirement of wearing steel-toed boots was causally related to the worker’s 2020 symptoms. The adviser sought recognition that these symptoms were the result of an “aggravation, activation or acceleration” of his pre-existing condition.
Despite this, the case manager issued a decision on July 8, 2022, noting that the potential aggravation by steel-toed boots was known during the original claim and that the recurrence had been denied. The case manager did not address the merits of the new aggravation claim. The worker appealed, but the hearing officer, on March 13, 2023, also declined to address the merits, stating that a new injury claim would need to be filed for adjudication.
In the latest decision, Appeal Commissioner David Pearson highlighted that the worker’s aggravation issue had never been the focus of adjudication. “While the fact that the Worker’s wearing of steel-toed work boots made his symptoms worse was known at the time of the original claim, it was never the focus of adjudication as a causal factor,” Pearson wrote.
Pearson disagreed with the case manager’s interpretation that the aggravation issue had already been considered. He noted that previous decisions focused on whether the 2020 symptoms were a recurrence of the 2016 injury, not on the potential aggravation caused by workplace requirements. “Those decisions never focused on the work boot requirement as a causal factor,” he stated.
The tribunal emphasized its limited authority under section 252(1) of the Workers’ Compensation Act, which allows it to confirm, vary, or reverse a hearing officer’s decision but not to address issues not previously adjudicated. “Given the lack of any decision on the merits of the aggravation argument, I am precluded from addressing the merits of that argument on appeal,” Pearson explained.
The tribunal’s decision directs the case manager to make an initial adjudication on whether the worker’s requirement to wear steel-toed boots led to symptoms that can be characterized as an aggravation, activation, or acceleration of his prior compensable foot injury. “The most appropriate disposition of this appeal is to return the issue to the Case Manager for an initial adjudication of the issue,” Pearson concluded.
The decision also leaves open whether this matter should be treated as a new claim or adjudicated within the existing 2016 claim, deferring to the Board on this procedural question. “That is more a procedural question than a legal one,” Pearson noted. “If its initial determination on that question is incorrect, participants may appeal and the Board’s authority extends to separating or merging claims.”
For more information, see 2023-118-AD (Re), 2024 CanLII 115271 (NS WCAT).
