Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Review Division office in Mount Pearl, NL on June 3, The worker participated in the hearing and was represented by Mel Strong, Appeals Officer with the Government Members Office. 2. Neither the employer nor the Commission attended or participated in the hearing process. Introduction 3. On May 26, 2011 the worker was assessed by an Orthopedic Specialist and diagnosed with Achilles Tendonitis. The worker reported that symptoms began around September/October Time lost from work began on June 11, The worker has not returned to work outside of a brief and unsuccessful attempt in April The worker had been in receipt of private disability benefits through to June On April 24, 2012 the worker participated in a Functional Assessment at the direction of her employer in relation to a compensable shoulder injury. 5. A June 27, 2012 Form 8/10 from the treating physician and a July 6, 2012 podiatrist report, related the worker s Achilles Tendonitis to her employment duties. 6. On September 30, 2012 the worker filed a Form 6, Worker s Report of Injury relating her foot symptoms to her employment as a File Maintenance Clerk. A November 8, 2012 decision denied the claim due to late reporting. The worker appealed. 7. A January 25, 2013 internal review decision referred the claim back to intake to obtain additional medical information and further review the file. 8. A June 10, 2013 intake adjudicator's decision again denied the claim due to late reporting. The worker appealed. 9. An August 19, 2013 internal review decision referred the matter back to intake to adjudicate the claim on its merits. 1

2 10. On April 16, June 4, July 2 and September 17, 2013 the worker was assessed by her Orthopedic Specialist. 11. On November 7, 2013 the Commission s Medical and Occupational Therapy Consultants reviewed the file and advised there was no relationship between the condition of Achilles Tendonitis and the worker s employment history. 12. A November 20, 2013 intake adjudicator s decision denied the worker s claim. The worker appealed with a submission from her advisor dated December 19, The February 19, 2014 internal review decision upheld the claim s denial. It is this decision the worker is appealing before the Review Commissioner. Issue 14. The worker is requesting a review of a decision of the Commission dated February 19, The worker requests the Review Commissioner find the Commission erred in denying her claim for compensation benefits. Outcome 15. The decision of the Commission dated February 19, 2014 is compliant with the Act, Regulations and policies, and is upheld. With respect, the review is denied. Legislation and Policy 16. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. 2

3 (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to a review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) (b) notify the person seeking the review and the commission of the time and place set for the review; and review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) (b) make a decision which is in accordance with this Act, regulations and policy; or where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 3

4 17. Other relevant sections considered are Sections 2(1), 43 and 60(1) of the Act, along with Policy EN-19: Arising out of and In the Course of Employment and Policy EN-20: Weighing Evidence. Relevant Submissions and Positions 18. Mr. Strong, on behalf of the worker, submits the worker s duties as a File Maintenance Clerk have caused the worker to develop Achilles Tendonitis. The worker s duties required her to squat constantly in order to complete her duties relating to pricing labels on shelves. In addition, he submits the worker walked a lot and was on her feet throughout her entire shift. 19. The worker testified that her job consisted of looking after all the price signage for the entire store. This meant she was constantly walking around a 40,000 sq. ft. area changing labels, adjusting pricing signs etc. When store specials occurred each week she was responsible to ensure the price changes were made on the shelving labels. This required her to squat constantly. The squatting was necessary due to her compensable shoulder injury as bending forward put considerable pressure on her shoulder blades. The worker states she is 5 9 tall and has to squat down a lot to reach the bottom shelving. 20. The worker notes that, despite the employer s comments that this work was completed by seven people, it was only completed by two people. Though the worker was part of an administrative team, she was not trained to do anything else except signage and assisting customers to locate items. 21. The worker maintains the Job Site Analysis relied upon by the Commission is not an accurate representation of her job requirements or duties. The worker s position is that her description of her duties and the Affidavit she has provided more accurately outline the duties of her position than the JSA. 22. Mr. Strong states that in 2007 the worker sustained a sprained ankle that healed well and the worker did not suffer any further problems with her foot since that time. Mr. Strong submits the present condition developed after her reassignment to the Smoke Shop following her compensable shoulder injury and her subsequent return to her pre-injury employment. 23. While employed at the Smoke Shop, Mr. Strong notes the worker sat on a stool all day long for over one year. Once her shoulder injury had stabilized and she returned to her pre-injury employment as a File Maintenance Clerk, the worker submits her body mechanics were compromised due to the fact that her body sort of shut down while in the Smoke Shop for the year. Her muscles shortened from sitting so much, her tendon had shrunk and the preinjury duties, which consisted of so much squatting, put pressure on her tendon and began causing problems. 24. The worker states she developed the problem with her foot in September, 2010 and, subsequently, availed of her private insurance. It was not until one year later, she submits, that her treating physician and podiatrist made the connection to her workplace activities. 4

5 25. Mr. Strong also notes the position of the worker was outlined in the file in several correspondences from the Workers Advisor. Correspondence of June 19, 2013 to the Commission on the worker s behalf states, in part: [The worker] disagrees with this decision for the following reasons. The Intake Adjudicator states on page 3 that: The only new information which occurred in June 2012 was you were notified by the private insurance company that your benefits would be ending with them as of June 13, It was not until you were notified by the private insurance company that your health care providers indicated your injury was now work-related, which was also after you had advised the employer you would be submitting a claim to WCB. It is our contention that the entire decision letter is focused on unwarranted accusatory statements by the Intake Adjudicator which then formed the basis of this decision. These statements and attitude can be found throughout the decision. Also this appears to be so mainly because this decision is a result of an Internal Review decision which was referred back for further investigation. Firstly we would like to comment that [the worker] takes exception to the accusation that she is misleading her employer and WHSCC. Secondly, this statement accuses her many health care professionals of being unethical and providing fictitious information to WHSCC. This is a very serious accusation by the Commission. Thirdly it appears that the Intake Adjudicator relied solely on the information gathered from the employer and treated it as absolutely credible without confirmation from [the worker]. This can be seen by the Intake Adjudicator s statements and in particular when she even calls WHSCC by the acronym of WCB. Enclosed please find the first page of a letter sent to [the worker] by the private insurance company. This page is dated and clearly demonstrates that [the worker] was advised on December 28, 2011 that her benefits would end on June 13, The Intake Adjudicator states on page 3 that: On June 27, 2012, you were notified by the insurance company your benefits would end on June 13, It is clear this information was provided by the employer to negatively impact the decision-making process. [The worker] concurs that she did receive another letter advising of the end date. The attached letter was a result of a home visit by the insurance agent in March 2012, to compile a return-to-work plan. [The worker] advises that during this visit she and the Insurance Agent again discussed the end date of benefits. The RTW Plan was drafted by the Insurance Agent. [The worker] advises that the RTW Plan was not supported by [the Occupational Therapist], who verbally raised concerns that the hours were too many to begin easeback (4 hour shifts) and that [the worker] was restricted from squatting and required 5

6 a stool. The OT also had concerns about the graduated hours. It was [the employer representative], who would not agree to the RTW Plan until [the worker] had an assessment completed. [The worker] returned to work on easeback and worked 4 hour shifts on April 30, May 2, May 4, and May 7, 2012 not 2 shifts as indicated by the Intake Adjudicator and provided by the employer. [The worker] reports that it was then that [the podiatrist] supplied a report to her treating physician and [the family physician] then supported the workrelatedness of the injury. [The worker] did not convince both Doctors to report to WHSCC that this was a work-related injury, she was advised by them that it was a work-related injury. It is our contention that [the worker] could not submit for a workplace injury until she was told by the treating physician that it was, in fact, a workplace injury and [the podiatrist] was prepared to submit the medical documentation to WHSCC as without it [the worker s] claim would have been premature and denied based on the lack of supportive medical documentation. 26. Further correspondence from the Workers Advisor dated December 19, 2013 states in part: The Intake Adjudicator quotes the Medical Consultant on page 6 that: However, it is apparent from the content of this report that the job does not require walking nor standing for the entirety of an 8 hour shift, and to say that [the worker] is on her feet all day is not accurate. This statement by the Medical Consultant appears to be biased on the OT report only, clearly [the worker] provided a very detailed job description and submitted a sworn affidavit that supported the need to be on the store floor continuously doing signage. The Medical Consultant has dismissed a level of evidence that warrants a significant weight based on Policy EN-20 Weighing Evidence. It is also our contention that there has been a very narrow focus placed on the decision without a full view to the claim. It is our contention the significant information relevant to accepting [the worker s] claim has been dismissed. We draw your attention to the following: Treating Health Care Providers support the causal link between the work activities and the injury. 6

7 The OT confirms that the casual link is rare but that means it does exist and the standard of proof for the Act is not scientific certainty but possible. The employer provided inaccurate/misinformation regarding the number of people performing the duty of signage (may have been misunderstood by the OT). A detailed job description was submitted by [the worker] indicating the extensive signage duties and the requirement to squat and be on her feet. There is a Sworn Affidavit that supports the mistaken information regarding the number of people (7) assigned to this job when in fact there is only 2. A Sworn affidavit regarding the amount of signage that requires squatting. It is our contention that the Intake Adjudicator has not provided the required weighing of evidence demanded by Section 60 of the Act. As this would be the second appeal on this claim, we respectfully ask the Review Specialist to consider all the information submitted and find that [the worker s] injury is compensable. 27. Mr. Strong concludes by stating the worker s treating physician and podiatrist agree the worker s condition is related to her workplace activities. Mr. Strong requests that I find the claim for compensation is acceptable. 28. The position of the Commission is outlined in the internal review decision of February 19, It states in part: On November 20, 2013, the Intake Adjudicator wrote you in response to the Internal Review decision to adjudicate your claim on its merits. She outlined the background information and noted that your file had been reviewed by one of the Commission s Medical Consultants as well as one of the Commission s Occupational Therapy Consultants. Following her review of the file and in weighing all evidence on file, the Intake Adjudicator found the weight of evidence does not support your job duties or work activity reasonably cause or contributed to your injury. As a result, your claim for compensation was denied. [The worker], I have reviewed your file in detail. I note that the Intake Adjudicator had your file reviewed by one of the Commission s Medical Consultants. You reported your symptoms began in September 2010 and this is when you initially sought medical attention. You were attributing your symptoms to increased walking and using the power cart at work. Your job duties also involved standing on your feet and bending/squatting. The Intake Adjudicator also noted that you came off work on June 11, 2011 and remained off work. You had indicated to the Intake Adjudicator that the 7

8 employer had provided inaccurate information regarding your job description and your representative provided additional information dated October 21, 2013 outlining your job duties. You reported you job duties included a lot of squatting to place signs and tags on the bottom two shelves. You indicated that due to your previous shoulder injury (compensable) you were shown how to squat and feel that this has caused your injury as well. The Intake Adjudicator requested medical information from your treating physician who has confirmed the diagnosis of left sided Achilles Tendonitis. An MRI was also completed. You were seen by [the Orthopedic Specialist], who noted that you worked with [the employer] and spent all day on your feet and was not a runner nor were you obese. He had stated that without your being an avid exerciser or overly obese, your standing all day at work aggravated your injury. The Intake Adjudicator also noted that you have been off work for 2 ½ years and the medical information on file continues to indicate that you were acutely symptomatic. You had had previous Functional Assessments (FA) completed in which standing was noted as frequent and squatting as minor. She requested the Medical Consultant review the file and provide an opinion from a medical perspective if it was reasonable to correlate the diagnosis of unilateral Achilles Tendonitis to the work activities outlined. The Medical Consultant indicates that your job does not require you walking or standing for the entirety of an eight hour shift and to say that you were on your feet all day was not accurate. He indicates that static standing and routine walking on the flat would not be considered as risk factors. He also outlines underlying causative factors. He notes that with respect to your unilateral Achilles Tendonitis and whether it can reasonably be correlated to your workplace activities as described, he notes that he would have difficulty supporting this especially since, despite an absence from work for over two years you are still symptomatic. The OT consultant notes that occupational related Achilles Tendonitis is rare based on her experience and in reviewing repetitive type strain injuries. She also outlines that it is usually associated with activities which require the foot to be dorciflexed for prolonged periods repeatly such as climbing ladders, walking on hilly and uneven ground and repeated or sustained squatting as in working in confined spaces. She also notes that the squatting and crouching as noted in your job description to reach the lower shelves was noted to be a minor demand with a task of reaching the lower shelves would be divided between seven worker s resulting in less than one hour shift completed intermittently. She also agreed with the Medical Consultant that walking and standing on even surfaces would not be a risk factor. In the absence of any significant resolution of your symptoms despite being away 8

9 from the reported risk, and based on the job demands as described on the claim, with limited required dorsiflexion the OT determined that she was unable to associate the development of your condition to your work activities. As a result the Intake Adjudicator reviewed and weighed all the evidence on file and found that the weight of evidence did not support your injury was reasonably related to your job duties or work activities. I note that you were first seen by [the Orthopedic Specialist] on May 26, He noted that you were seen for left side Achilles Tendonitis which had been going for about a year now. He indicates no history of any trauma. You worked with [the employer] and spend all day on your feet. You were not a runner nor were you obese. He does not associate your condition with your job tasks. You were seen by [the Orthopedic Specialist] again on July 2, He notes that you worked at [the employer] standing on your feet all day and presented with classic signs and symptoms of Achilles Tendonitis. He indicates that you requested that he send a letter off to WHSCC about your course, as you were applying for benefits thinking this may be a compensable injury. He notes that without your being overly obese or an avid exerciser, your standing all day at work certainly aggravated this issue. Whether or not it is a compensable claim, he says he will leave to the discretion of the Commission. I find that he does not indicate that your work was a causative factor in your condition rather than your standing all day at work aggravated the issue. I note that the Commission s Medical Consultant indicated that he would have difficulty supporting that your unilateral Achilles Tendonitis can be reasonable (sic) correlated to your workplace activities especially since despite an absence from work for over two years you are still symptomatic. The Commission s OT Consultant also felt that in the absence of any significant resolution of your symptoms despite being away from the risk and based upon the required job demands as described on your claim, the OT Consultant was also unable to associate the development of this condition to your work activities. Although it is [the Workers Advisor s] contention that your work activities, specifically the squatting required in your job has provided the possible causal link to the workplace, I note that he (sic) OT has confirmed that the job demands with respect to squatting, was noted to be minor. Although walking was considered frequent, both the Commission s Medical Consultant and OT indicates that static standing, or frequent walking on flat surfaces, would not be a risk factor. [The Orthopedic Specialist], in correspondence on file indicates that standing all day at work certainly aggravated your condition however he does not present it as a risk factor for development of the Achilles Tendonitis. The Intake Adjudicator noted that your job description as well as the employer s job description was taken into consideration as well as the assessments that were performed at 9

10 the time providing evidence of the actual job duties and requirements of your positions. She reiterates that as noted in these assessments, squatting/crouching duties are indicated as minor. There is frequent standing required however this is not static standing as you are required to move around frequently which is also indicated by yourself in your description of your job duties. You have also indicated that your injury was caused by the way you were taught to squat to protect your shoulder however the [the Occupational Therapist], indicates that upon her review, there is no mention of your having to squat in a certain manner to avoid aggravation of your shoulder injury. I find that the Intake Adjudicator has reviewed your file and consulted with the Commission Medical Consultant as well as the OT Consultant. She notes that the circumstances on your file also indicates that you have been out of the workplace for 2 ½ years with no resolution or improvement in your symptoms. If your job duties were aggravating your injury, once you were no longer exposed to these job duties it is reasonable that your symptoms would have improved or resolved. The Medical Consultant indicates it s difficult to reasonably relate your workplace activities to your diagnosis especially since you have been absence from work for over 2 years and are still symptomatic. The OT also agrees with this. Based upon the Medical Consultant s comments as well as the OT Consultants comments, both outlined the risk factors in the development of Achilles Tendonitis and that walking and standing on even surfaces would not be a risk factor for the development for your condition. Analysis 29. In order to fully understand the context of the worker s argument for compensation benefits, it is necessary to review the timelines and some of the events leading up to the worker s current claim. It should be noted the worker had initially suffered a compensable shoulder injury approximately 20 years ago and has since suffered multiple recurrences and flare ups of this original injury. It is difficult, from my review of this specific claim only, to discern precisely the relevant dates, however, these specifics are not germane to this reasoning. 30. Arising from the latest flare up of the compensable shoulder injury the worker completed a Targeted Functional Assessment on February 23, By April 2008 it appears the worker had returned to work and in a report by the Occupational Therapist dated April 18, 2008 it is noted the worker was completing full hours of her pre-injury File Maintenance Clerk position and continued to work within her limitations. Some concern was expressed with respect to the worker s ability to cope with upcoming changes to the position of the File Maintenance Clerk at that time. 31. On May 2, 2008 the Occupational Therapist records in her letter to the employer that Based on current limitations, the only suitable option identified at this time is that of [the smoke shop] Clerk as discussed in our meeting. Training for the new position was due to begin on May 2,

11 32. A Triage Assessment Report dated May 26, 2008 confirms the worker was assessed by the Emergency Department. It notes Pt tripped on a rock and twisted her lf foot. Pt sprained the same ankle x2 in past. 33. It appears a meeting occurred on July 8, 2008 with the Occupational Therapist, the worker and the employer with respect to the worker s functional abilities and assignment to the smoke shop with regard to restrictions resulting from the shoulder injury. The correspondence of July 11, 2008 states: As per our meeting with [the worker] on July 8, 2008, the report dated June 18, 2008, was reviewed in detail. Specifically it was discussed that the two purposed positions, namely that of Floral Operator and Demo Clerk are not suitable for [the worker] given that they have physical demands, which exceed her current capabilities. Specific problems areas and problem tasks were reviewed as outlined in that report. In response [the worker] was very upset, as you are aware. She reports that she absolutely hates her current position as Smoke Shop Clerk. She reports feeling isolated to the point where she feels she is in prison. She emphatically states that she is unhappy working in the Smoke Shop and wishes to return to her pre-injury position as File Maintenance Clerk. As outlined above, there are a number of potential problem areas identified when comparing [the worker s] abilities with the required job demands of her pre-injury position as File Maintenance Clerk. As you are aware, [the worker] had been working in this capacity by restricting the duties she was completing i.e., minimal SPV ing and no inventory. The primary concern with File Maintenance, as you are aware, is the up and coming changes which will likely eliminate the current flexibility for postural changes between sitting, standing, and walking i.e., all work will be done from a lap top computer which will be pushed/pulled on a mobile cart throughout the store. Please note that this has been previously discussed with [the family Physician], who agreed this is beyond [the worker s] safe capacity. In the meantime, [the worker] has been advised that once these changes are implemented, the position will be further reevaluated in term of its physical demands to explore suitability. It is my understanding that while unhappy about it, [the worker] is planning to continue with Smoke Shop Clerk duties for the time being. 34. On August 26, 2008 the employer confirmed the offer of a permanent accommodation to the worker effective August 18, The correspondence states: The purpose of this document is to confirm that [the employer] is offering a permanent accommodation to [the worker] of [the employer] effective August 18 th, The accommodation involves 8 hour shifts in the position of a 11

12 [Smoke shop] clerk. This position safely meets all the functional capabilities of [the worker] as outlined in the Targeted Functional Assessment completed by [the Occupational Therapist] of Central Rehab. It is important to note that [the Occupational Therapist] completed various JSAs (File Mt. clerk, Floral Clerk, Demo Clerk, etc.) in an attempt to safely match [the worker] to another position. However, no safe job match could be found other than that of a [Smoke Shop] clerk. As well, [the employer] is aware that [the worker] is not very receptive to this permanent accommodate (sic) and as a company we will continue to have [the worker]assessed in hopes of finding a more pleasing position while ensuring her safety while in the workplace. 35. The worker indicated she began acupuncture in November, 2008 and had good results. Following a Job Site Analysis in November, 2008 the Occupational Therapist prepared a Job Match Report which is dated December 12, The summary of the report noted the following recommendation: In summary, 4 of the 7 Administration Clerk tasks are considered unsuitable for [the worker] based on comparison of physical requirements with safe functional tolerances. These include: File Maintenance (using Power Cart), Receiving Delivered Goods, Cleaning Receiving Areas, and Placing Cardboard Boxes in Bailer. The remaining 3 tasks (Inventory, File Maintenance in Computer Room, and Other Computer Work) while not fully suitable, have potential for becoming suitable with job modifications. Primary modification required involves rotation with other tasks that do not involve significant right upper extremity use to allow for appropriate recovery periods. This will significantly reduce the risk of sustaining further flare ups associated with prolonged, sustained right upper extremity reaching and handling. 36. In February, 2009 another Targeted Functional Assessment was completed to assess the worker s level of function for a return to the pre-injury position. The Occupational Therapist concluded with the following: With assistance with items weighing over 21 lbs and with the elimination of the requirement to maneuver the manual pallet jack, this position is considered suitable for [the worker]. Please note, I have asked [the worker] to follow up with her [the Family Physician], to discuss recent improvements in overall level of function. As the last note on file from [the family physician] recommends minimal use of right upper extremity, it is important to confirm medical clearance for return to work in any alternate capacity prior to terminating current Smoke Shop Clerk position. [The worker] identified no concerns in this regard. 37. Following this assessment it appears the worker returned to her pre-injury position as a File Maintenance Clerk. The worker indicated this occurred in March or April 2009 having 12

13 spent approximately one year working in the smoke shop. On September 23, 2010 an Adjudication Summary was prepared by the Occupational Therapist in relation to the worker s right shoulder and elbow pain recurring. Recommendations made by the therapist reference symptoms related to the right shoulder and elbow. There is no reference, I note, to symptoms related to the worker s feet at this time, despite the worker s position that she was experiencing symptoms in September The worker s testimony is that she began experiencing problems with her feet in September, On February 8, 2011 the worker was referred by her treating physician to orthopedics. Reason for Referral is noted as Achilles Tendonitis (L). The worker s testimony is that she began experiencing problems with her feet in September, On May 26, 2011 the worker was assessed by an Orthopedic Specialist. The Specialist s report states: Thank you for asking me to see [the worker], a 52 year old lady with left sided Achilles tendonitis. It has been going on for about a year now. No history of any trauma. She works with [the employer] and spends all day on her feet. She is not a runner nor is she obese. She denies any other major joint issues. She has an ongoing shoulder problem that is a work related injury. She denies any extra articular manifestations of an inflammatory arthropathy. On examination this lady has classic Achilles tendonitis. There is thickening and tenderness in the body of her Achilles tendon. It is structurally intact. Her ankle and subtalar range of motion is full and pain free. Treatment for Achilles tendonitis starts off nonoperatively, antiinflammatories, slight heel wedge often help control patient s symptoms. I have taken the liberty of sending her to physiotherapy. Sometimes the physiotherapist will put some local antiinflammatory modalities and get this to settle down. Should that fail she is going to follow up with you again. The next step in a regimen of casting, placed in a low-profile worker boot for six weeks. This helps rest the overuse syndrome and get things to settle down. Failing all these treatments the final option is a surgical debridement of Achilles tendon. This is often less than fruitful operation and is reserved for the recalcitrant cases. (emphasis mine) 39. I note the orthopedic specialist notes symptoms were present for about a year now. This would be May, 2010, only two months into her return to her pre-injury employment. Further, I note the orthopedic specialist makes no reference to any work relatedness as a cause for the condition. The orthopedic specialist, however, does acknowledge the worker has an ongoing work related shoulder problem. 13

14 40. The worker went off work in June The worker continued in 2011 and 2012 to be treated by her treating physician for Achilles Tendonitis and was also treated with shock wave therapy by her treating podiatrist. Beginning December 15, 2011 the worker was availing of long term disability benefits with a private insurer. A claim for workers compensation benefits was not submitted until September 30, The Form 6 noted the date of injury as June 13, It is the worker s position that she was unaware her condition was related to her workplace activities. I note the worker s letter to the Commission dated September 30, 2012 states: In Sept/Oct of 2010 I start having problems with my feet in the back just above my heel. I went to my [family physician] and he said I had a problem with my Achilles tendon. He had his secretary set up an appointment for me to see a [the orthopedic specialist]. When the letter came for the appointment in January 2011 the appointment was not until I went back to my family Doctor and told him that if I had to wait that long I would be crippled or in a wheelchair. He made some calls and had an appointment changed to May My feet hurt everyday and all my coworkers and boss knew of my problem and the length of time it was taking to see a specialists. In May I saw [the orthopedic specialist] HSC he said I has Achilles Tendonitis but could not understand why because usually people with this problem are runners, athletes or overweight and I was neither. He said to start with physio if that did not work a cast if that did not work a cortisone needle which he did not like to give in that area and if that never worked there would be surgery. I returned to [the family physician] and told him what [the orthopedic specialist] said and [the family physician] said that if [the orthopedic specialist] did not think I should have this problem why did I. [The family physician] decided to send me to [the podiatrist] to see if he knew why I had this problem. On June 11, 2011 I stopped work. I completed my shift and did not know how I was going to get across the parking lot to my car because my feet were paining with every step. [The family physician] also gave me a prescription to pick up braces to wear on both feet to ease the pain. I started physio and saw in July He agreed that I had Achilles Tendonitis and came to the conclusion that when I bend my knees that my ankles roll inward causing strain on the tendons. For months I went through a series of treatments Extra corporeal Shock Wave Therapy and then was outfitted with orthotics and new shoes. I had to start to increase my walking until I was comfortable with the inserts. My Insurance wanted me to do a gradual return to work and both Doctors gave the ok. I returned to work April 2012 for four hour shifts three days a week. The plan was to increase the hours weekly. Right away I started to have pain and after the first week I returned to my Doctor to let him know what was happening. He wanted my schedule to stay the same not increase for a longer period of time but my employer did not want that so [the family physician] had to stop work again. [The family physician] sent me to see [the podiatrist] again to make sure the shoes and orthotics were ok and did not need any adjusting. [The podiatrist] 14

15 agreed that my feet had worsened and that it was caused by overuse of the tendons and should have been workers compensation from the beginning. Due to my shoulder injury over the past years I was taught by Fit for Work worker s comp and many therapist to always squat down keeping my back straight and never bend from my waist. In order to place signs or tags or spv the bottom two shelves at my work you had to squat down sometimes for a period of time. 41. The issue on this claim comes down to whether the worker s diagnosed Achilles Tendonitis is a condition arising out of and in the course of her employment as a File Maintenance Clerk. In my review of the file evidence, I note there is very little evidence speaking to the likely origin of the worker s condition. Further, the medical evidence which the worker s representative has requested I rely on contains conclusions, but relatively few findings and little in the way of a supporting rationale. 42. In addition to the medical report of the Orthopedic Specialist previously noted there are several reports from the treating physician as well as clinic notes. There are also several documents from the treating podiatrist. I note the following evidence: a. October 18, 2011: Podiatrist Just a note of follow up Re [the worker] [in] her L>R achilles tendonitis. I have concluded the shockwave therapy with her now, and to date, there is noted improvement. I will follow up as required. b. April 4, 2012: Podiatrist I saw [the worker] today for an assessment of her progress & the ability to return to work. I think she is ready to a decreased capacity. She still finds discomfort around the medial ankle [] rest overall she has improved, so I think partial shift [in]/out crouching duties (this will aggravate the achilles). c. June 27, 2012: 8/10 Report Treating Physician [The podiatrist] who has been treating her and I both now agree that this was work related. [the podiatrist] agrees. Work related. d. July 6, 2012: Podiatrist [The worker] was assessed on June 17/2011 for Bilateral achilles tendonitis. She has undergone various treatment modality at our clinic including, orthotic therapy. shockwave therapy. Orthopedic footwear fitting. 15

16 Despite the progress made with these treatments. [The worker] was unsuccessful returning to work. It is in my opinion that her work environment is non suitable for her acquired foot ailment. She had no history of this or any other foot condition prior to a change in her work duties of extended standing/squatting. I do feel that due to her work environment [the worker] developed a chronic achilles tendonitis condition. e. October 22, 2012: Treating Physician The above lady has a prolonged history of bilateral Achilles tendonitis, dating back to September She has been seen by [the Orthopedic Surgeon], who essentially recommended non surgical medical intervention which she has been getting in spades, including excellent treatment by [the Podiatrist]. As this point the problems are becomming (sic) intolerable and there seems to be no improvement in sight. I believe her condition to be chronic and because of the significant walking issues involved cannot see her to be ever going back to her place of employment and believe her o (sic) be permanently disabled from any type of employment. We have requested another consultation by [the Orthopedic Surgeon] at this point as a reassessment. The appointment is not imminent. 43. Upon receipt of this evidence, as part of the entitlement determination, the Commission consulted with the Medical Consultant for an opinion on the probability of work relatedness with respect to the worker s diagnosis of Achilles Tendonitis. The Intake Adjudicator, in WHSCC Claim Notes dated November 6, 2013 provided the following information to the Medical Consultant to assist with this opinion: 55 year old File Maintenance Clerk is reporting an injury to her left heel as occurring on June 11, Worker was employed in current position for a year or two prior to injury and has been employed with pre-injury employer for 30 years. Worker reports her symptoms began in Sept 2010 and this was when she initially sought medical attention. Worker is reporting an injury to her left heel/foot and describes symptoms of pain in heel/ankle area when walking. Worker is attributing her symptoms to increased amount of walking; using the power cart which eliminated her work in the back office; standing on her feet and bending/squatting. Worker does not report any previous history of problems; worker states she did twist her ankle a few years ago but did not require any medical treatment. Worker states she was being accommodated in the smoke shop due to her workplace shoulder injury in 2008/

17 Worker came off work on June 11, 2011 and remains off work. Worker attempted to return to work in April 2012 for two four hour shifts and came off work again on May 7, Worker was receiving private disability benefits which ended on June 13, Employer indicates worker was off work due to annual leave and sick leave from March 11, 2011 to April 22, 2011 and had returned to work for 5 weeks prior to coming off work on June 11, Employer also states worker is an avid gardener and they are questioning the impact of this activity on the worker s symptoms/injury. [The Occupational Therapy] with Central Rehab has provided documentation dated September 24, 2013 providing a review of worker s job duties. She notes the worker had a functional assessment completed on April 24, 2012 which is on file. Worker indicates the employer has provided inaccurate information regarding her job description; worker s rep has provided documentation dated October 21, 2013 indicating worker s outline of her job duties. Worker advised she wanted to add a couple of things for consideration on her claim. Worker states once per month items are on sale and more people would do the signage; this is called EDLP. She states also there was an SPV process once per week where items in the store are scanned in the store. Worker states only two people were performing this job duty; sometimes one other person would help. Worker did have a previous shoulder injury on claim (# ) which employer was providing accommodations for in the workplace. Numerous assessments were completed on this claim and worker was closely monitored by the OT consultant with regard to her job duties. Worker had the following assessments TFA on Feb 23, 2007; job match on Dec 12, 2008; TFA on Feb 4, 2009 and an adjudication summary on Sept 23, These documents have been imaged to this claim (document date is Nov 5, 2013 on image file). Worker reports her job duties include a lot of squatting to place signs and tags on the bottom two shelves. Worker also states due to her shoulder injury she was shown how to squat and she feels this has caused her injury as well. [The orthopedic specialist] indicated worker should use a walking boot; however, states she has not worn any walking boot. Worker states she did apply for CPP disability; however she was denied. Worker states it is now in tribunal. Medical documentation was requested and received from [the orthopedic specialist], [the family physician] and [the podiatrist] relating to worker s left foot problems. On May 26, 2011 worker was assessed by [the orthopedic specialist]. [The orthopedic specialist] consultation report indicates worker was diagnosed with left sided Achilles Tendonitis which has been ongoing for about a year. Worker began seeing [the podiatrist], on June 17, [The podiatrist] indicated worker had Achilles tendonitis. The first mention of the possibility of worker s injury being work related is an 8/10 dated June 27, 2012 received by the Commission on July 3, 2012 and a report dated July 6, 2012 from [the podiatrist] wherein he mentions worker s 17

18 injury is related to her job duties. ER reports on file also indicate worker had a previous ankle injury in Worker has seen (Specialist) on numerous occasions and had an MRI completed; reports on file. [The orthopedic specialist] noted worker works with [the employer], spends all day on her feet and is not a runner nor is she obese. In a report dated July 2, 2013 [the orthopedic specialist] states without the worker being an avid exerciser or overly obese her standing all day at work certainly aggravated this issue. Of note, worker has been off work of 2 ½ years and the medical continues to indicate worker is acutely symptomatic. Also, worker had functional assessments completed in 2009 and 2010 which indicate she had ergonomic workstations and two ergonomic chairs. Standing is noted as frequent and squatting as minor. Please review and provide your comments regarding the causes of Achilles Tendonitis and risk factors associated with this condition. Also, please provide your opinion from a medical perspective if it is reasonable to correlate the diagnosis of unilateral Achilles Tendonitis to the work activities outlined. Your comments are greatly appreciated. Thank you. 44. The Medical Consultant provided the following opinion in his WHSCC Claim Notes of November 7, 2013: I have reviewed the etiology of Achilles Tendonitis and also the medical reports and specialist reports on this claim pertaining to the foot as well as the OT reports which outline the workplace activities associated with [the worker s] occupation, particularly around the time [the worker] relates the onset of symptoms to have occurred. The OT report from Central Rehab dated Sept 23, 2010 outlines modified duties to be performed. Of note, there is no mention of foot or feet problems in this narrative, despite there being opportunity for any such problems to be discussed. The workplace activities advocated by the occupational therapist, are primarily in reference to right shoulder and elbow pain. However, it is apparent from the content of this report that the job does not require walking nor standing for the entirety of an 8 hour shift, and to say that [the worker] is on her feet all day is not accurate. The etiology of Achilles Tendonitis is varied and, in terms of activity-caused tendonitis, is usually associated with an unaccustomed increase in activity, in a sports or leisure setting where running, jumping, fast walking, walking up slopes is performed to a greater extent than the sufferer has been hitherto accustomed. Static standing and routine walking on the flat would not be considered as risk factors, although, once Achilles tendonitis is already present, walking would bring on the symptoms (but not aggravate the underlying condition as walking would very likely be curtailed because of pain). 18

19 Underlying causative factors include abnormal foot anatomy, ill-fitting footwear, protuberance of the calcaneal bone, obesity (not a factor in this case) advancing age with associated underlying tendon degeneration and possibly reduced blood supply. With respect to whether this lady s unilateral Achilles tendonitis can be reasonably correlated to her workplace activities as described, I would have difficulty supporting this, especially since, despite an absence from work for over 2 years, she is still symptomatic. However, although I am able to confirm the diagnosis and am unable to correlate this diagnosis to the workplace activities thus far described, I recommend that one of our Occupational Therapy consultants review the claim in the light of the confirmed diagnosis. Using her expertise in reading and understanding OT reports, as well as in relating, or otherwise, known activities with specific disease processes, she will be able to provide a meaningful opinion on the work-relatedness question. I hope this is of some use to you in your adjudication of this claim. 45. As recommended by the Medical Consultant the Intake Adjudicator sought the opinion of the Occupational Therapy Consultant in WHSCC Claim Notes dated November 7, The Claim Note states: Please reference case note dated Nov 6, 2013 for details and summary of claim. Claim has also been reviewed by Medical Consultant and the response is included in this note. Please review and provide your comments regarding the following: if there are job duties/risk factors which the worker was exposed to in the workplace which would cause this diagnosis. Also, given the job tasks identified is the diagnosis reasonably related to the worker s job duties. The worker also notes she was compensating for her shoulder when squatting which contributed to her heel injury, please comment on the impact of this on her heel injury. Your comments are greatly appreciated. Thank you. 46. The Occupational Therapist s opinion is included in WHSCC Claim Notes also dated November 7, It states: This worker has been diagnosed with a left sided Achilles tendonitis which started some time prior to September 2010 and for which she first sought medical attention. She continues to have ongoing problems with her left heel, for which she has had pedorthic intervention, and saw [the orthopedic specialist] on several occasions with very little improvement in her condition. Occupational related Achilles tendonitis is rare based on my experience in reviewing repetitive type strains. It is usually associated with activities which required the foot to be dorsiflexed for prolonged or repeatedly such as 19