WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2159/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2159/13 BEFORE: A. T. Patterson: Vice-Chair HEARING: November 15, 2013 at Toronto Oral DATE OF DECISION: April 17, 2014 NEUTRAL CITATION: 2014 ONWSIAT 860 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) F. Amorim dated June 21, 2012 APPEARANCES: For the worker: For the employer: Interpreter: J. Anampiu, Union Representative Did not participate. None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2159/13 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that he does not have a compensable permanent impairment of both feet as a result of plantar fasciitis, and that he does not have consequent entitlement to ongoing healthcare benefits in the nature of orthotics and, or, orthopaedic shoes. [2] The worker was denied initial entitlement by the WSIB operating level, but this determination was overturned by decision of ARO D. McParland, dated May 20, [3] On November 5, 2013, the representative submitted material which he wished to have considered at the hearing. As the material was not submitted more than three weeks prior to the hearing, in conformity with the three-week deadline, the materials were not accepted. As a preliminary issue at the hearing the worker representative requested that the documents be admitted into evidence. [4] The first document is a physiotherapy report dated October 30, Given the impossibility of providing the document within the three-week rule, and the relevance of the report to the issues in dispute it was accepted into evidence. This document was identified as Exhibit #6. [5] The second document is an undated report from the worker s family physician. It also was accepted on the basis of its relevance to the issues under appeal. This document was identified as Exhibit #7. (ii) Issues [6] The issues under appeal are as follows: 1. Whether the worker has entitlement to a permanent impairment for plantar fasciitis; and 2. Whether the worker has entitlement to ongoing health care benefits for the condition. [7] The appeal is allowed for the reasons set out below. (iii) Background [8] The following are the basic facts. [9] The now 53-year-old worker was employed as a welder. On April 2, 2001, he reported an onset of bilateral foot pain which he related to his employment. [10] ARO D. McParland concluded in the decision dated May 20, 2003, that prolonged standing on concrete floors wearing safety boots, is a significant contributory factor in the development of [plantar fasciitis]. In addition to the prolonged standing [the worker] is handling significant weight while doing so, adding to the pressure on his feet. [11] The ARO further concluded that the worker was entitled to health care benefits and the reimbursement of his prescribed orthotics. There is no evidence of a permanent impairment.

3 Page: 2 Decision No. 2159/13 [12] In September 2008, the worker had a recurrence of his condition which was allowed by the WSIB along with entitlement to heath care benefits. [13] In September 2010, Dr. J. L. Mughal, the worker s family physician, prescribed custom orthotics and orthopaedic shoes. Entitlement to the health care benefits was turned down on the basis that ongoing entitlement had not been recognized given that the worker had not been recognized as having a compensable permanent impairment. [14] The worker appealed that decision, which was upheld by ARO F. Amorim in the decision dated June 21, The worker now appeals that decision to the Tribunal. (iv) Law and policy [15] Since the worker was injured in 2001, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [16] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Package #61 NEL Entitlement; Package #95 Health Care Benefits; Package #99 Wheelchairs/Orthopaedic devices; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [17] I have considered these policies as necessary in deciding the issues in this appeal. (v) Testimony [18] The worker testified that since 2001 his bilateral foot condition has improved and regressed. [19] He indicated that after 2001, the accident employer provided him with a chair which afforded him the opportunity to sit down on occasion. [20] In 2003, the employer began making a device which involved sitting in its manufacture. The worker applied for the position to manufacture the device and since he had seniority it was given to him. The worker testified that because the work involved more sitting his condition improved. [21] The worker s recollection was unclear as to when the employer stopped manufacturing the device, stating that it was after 3 to 5 years. He related his recurrence of 2008 to the fact that he began standing for greater durations after the device was discontinued. [22] He indicated that after 2008, the employer installed floor mats and he was able to sit somewhat more frequently. [23] The worker indicated that his foot pain is about the same as in The accident employer provides safety shoes for which he buys special insoles every two years. If he does not wear orthotic shoes, such as at a wedding, he finds it difficult.

4 Page: 3 Decision No. 2159/13 (vi) Analysis (a) Entitlement to a permanent impairment [24] Operational Policy Manual (OPM) Document No , Determining Maximum Medical Recovery (MMR), stipulates [w]orkers reach maximum medical recovery (MMR) when they have reached a plateau in their recovery and it is not likely that there will be any further significant improvement in their medical impairment. [25] I find that the evidence supports the conclusion that although the worker s plantar fasciitis condition fluctuated over time, it has not resolved completely since [26] I note Dr. R. Wong s report of December 1, 2002, which indicates: He complains of pain in his feet that have been present since April 2001 As for his future rehabilitation, he may need modified work from time to time when his foot pain flares up. He also needs to do stretching exercises and foot massages to decrease the standing load affects [sic] on his feet. If the problem continues, custom orthotics may be ordered. Anti-inflammation medication may decrease his symptoms but obviously cannot be used on a prolonged basis. Common analgesics such as Tylenol 500 mg may be used. Foot splints at night may help to decrease the swelling. Application of ice right after work for minutes may decrease the swelling. Keeping his feet in an elevated position will also decrease the swelling. [27] On February 22, 2005, the worker visited Rheumatologist Dr. I. Khan who reported: He s developed plantar fasciitis over the last couple of weeks. The left is more symptomatic than the right. [28] On March 30, 2005, Chiropractor Dr. S. G. Lanoye indicated: Previously had foot problem WSIB claim progressively recurred over past year. [29] On January 31, 2008, the worker attended Physiotherapist S. Wong who noted the worker s history and identified as a factor which may delay recovery the chronicity of the problem. [30] In a Form 8 dated February 25, 2008, Dr. Mughal noted [h]as had pain from plantar fasciitis since April 2001 from prolonged standing at work as a welder. [31] On June 26, 2008, Dr. Mughal indicated: This man has been under my care since 2001 for bilateral plantar fasciitis. I have referred him to different foot specialists for custom made orthotics but his pain has persisted from 2001 to present time. It is aggravated by standing at work most of the time. [32] The worker continued to receive treatment for his bilateral foot condition throughout 2008 until early On February 12, 2009, Physiotherapist S. Woo indicated: Pt. is currently doing regular duties with a cushioned mat. There is no restriction now. However, five days later a physiotherapist s treatment extension request was completed by Ms. Woo. [33] On July 28, 2010, Dr. Mughal prescribed physiotherapy once more. [34] On September 27, 2010, Dr. Mughal completed a Progress Report in which he noted that the worker would have standing limitations for 4+ weeks.

5 Page: 4 Decision No. 2159/13 [35] On April 18, 2011, Dr. Wong wrote a report in which he reiterated his reasons underpinning his belief that the worker s condition was related to his occupation. Dr. Wong also indicated [h]e needs orthotics in his boots. His foot condition is permanent. [36] On January 9, 2012, Dr. Mughal wrote a prescription for orthotics. [37] On February 17, 2012, Dr. E. Kuehnel completed a Form 8 indicated that the worker required breaks from standing as needed. [38] The physiotherapy report dated October 30, 2013, identified as Exhibit #6, indicates that the worker was seen in April 2013 for bilateral plantar fasciitis with heel spur. The report indicates that the worker attended five treatments and that it would be beneficial to patient to purchase orthotics. [39] Based on the medical evidence outlined above, in particular the reports of Dr. Mughal and the report of Dr. Wong dated April 18, 2011, I find that there is sufficient evidence to conclude that the worker s bilateral plantar fasciitis is permanent. [40] I also note that there is evidence of continuity of symptoms since [41] Therefore, I conclude that the worker is entitled to a permanent impairment of his feet and a non-economic loss (NEL) assessment. (b) Entitlement to health care benefits [42] Given the finding, based on the evidence and reasons set out above, that the worker s condition since 2001 did not resolve, and given that the condition is compensable, it follows that the worker is entitled to health care benefits, including orthotics and orthopaedic shoes prescribed for the compensable condition.

6 Page: 5 Decision No. 2159/13 DISPOSITION [43] The appeal is allowed [44] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: April 17, 2014 SIGNED: A. T. Patterson