WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 240/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 240/11 BEFORE: S. Hodis : Vice-Chair M.P. Trudeau Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: February 3, 2011, at Sudbury Oral DATE OF DECISION: June 2, 2011 NEUTRAL CITATION: 2011 ONWSIAT 1370 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) Mr. N. Shruiff dated October 25, 2006 APPEARANCES: For the worker: For the employer: Interpreter: J. Johnson, Paralegal Not participating 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. 240/11 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that the worker did not have initial entitlement for bilateral foot condition as a result of working duties. The ARO rendered a decision following an oral hearing. (ii) Issues [2] The issue under appeal is whether the worker has initial entitlement for bilateral plantar fasciitis and bunions of her feet as a result of working duties. (iii) Worker s Testimony [3] The worker started with the accident employer in Before this time she had stayed home and raised her children. She had one retail job when she was first married. She had no injuries at that time. During her employment from 1994 to 1999 she did the same job of sanding, grinding, sandblasting and tapping holes. The worker did not have any quotas but she was required to work quickly. She worked with 6 to 7 people and everyone rotated duties to alleviate the pressure on their body. This would give her feet and hands a rest. [4] The worker testified that in March 1995 the worker was on a work placement and hurt her back while lifting a bus tire off the floor. The worker stated that the pain radiated down her leg to the middle of her foot. The worker testified that her right foot is the worst. [5] In 1999, her job changed as she was now the only person doing the job. The worker testified that she did 3000 to 4000 pieces per day. She worked 9 hours per day/5 days a week. The worker testified that she would often work 12 hour shifts. During her shift she was standing the entire day. [6] The worker testified that the shop floor was wet. The worker testified that the employer put a piece of wood on the floor so that the worker was not standing in water. The floor would be wet in the winter from snow and wet in the summer when it rained. There was no heat unless it was 20 degrees below. The worker testified that her feet were wet from the water on the floor and always cold and frozen from 1999 to The worker testified that her feet felt like there were crumbs sticking to the bottom of her feet. The worker testified that she made the connection between her feet and her working conditions in [7] The worker testified that she wore high cut safety boots with steel toes. The worker testified that she had no problems with her boots and they fit well. The worker testified that she bought 3 pairs of boots the year before she stopped working to see if they would eliminate the pain. The worker testified that she now wears orthotics. [8] The worker testified that the pain changed in 2000, approximately one year after she started working at her new job. The worker described the pain as steady and going from her ankle to the tip of her toes. She feels like her ankles are broken. Her ankle gives out. She has fallen many times as a result of her ankles giving out. She testified that when she walks she feels like she is walking on crumbs in both feet. Her feet feel numb. On her right foot she has a pain

3 Page: 2 Decision No. 240/11 the size of a toonie on her right arch. She also has pain on the side of her feet. Any touching of her feet causes pain. Her feet are sore even if she sits. The worker testified that the pain she has is different than the pain she had coming from her back. The worker testified that her right foot is worse than her left. [9] The worker testified that she had pain since the end of She would visit Dr. Pinkney between 2000 and 2005 on a continual basis. Dr. Pinkney advised her that she should take time off work. The worker admitted that the doctor told her to take time off work not just for her feet but also for other issues. The worker testified that she visited a chiropractor for the first time in 2005 for her feet as she was falling. Her chiropractor told her that it is likely she is having problems with her feet because she is standing on the sides of her feet and this is causing pain. The worker testified that the chiropractic treatments helped a lot but had to stop because she no longer had benefits. The worker testified that she went to the chiropractor 2 to 3 times a week for 4 months. The worker advised that the chiropractor did not tell her that she was flat footed but that she had moderately fallen arches. [10] The worker was referred to the chiropractor s report in the Case Record and questioned as to why the chiropractor stated that she was able to return to work without restrictions. The worker testified that she does not know why the chiropractor said this. At the time she saw him she was off of work for 6 months. [11] The worker was asked why there is no reference in Dr. Pinkney s notes about her feet in The worker stated that she could not explain why there is no reference. The worker also stated that she does not know why Dr. Pinkney put a notation on May 25, 2005 that the worker had sore feet for 2 months. [12] The worker testified that she also saw the doctor for lung problems as she was inhaling dust from sanding and grinding. [13] The worker testified that she has been off work since She stopped work because everything was sore including her shoulders, back, neck, fingers, and elbows. She applied for CPP disability benefits and has received them since May The worker believed that as part of her application her feet were included along with the other conditions mentioned above. [14] The worker stated that she stopped working in January 2005 due to her lung condition. The worker has never filed a WSIB claim for her lung condition. [15] The worker testified that currently she is receiving no treatment for her feet. She takes Tylenol for pain. She no longer goes to the chiropractor as she cannot afford treatment. She is waiting to see a specialist in Toronto for her feet. [16] The worker confirmed that she saw a chiropractor, her family doctors and Dr. Graham with respect to her feet. Dr. Graham stated when he examined her feet that it could develop diabetes. She also saw Dr. Kangee in 2006 or 2007 for her feet and other issues. She prescribed medication for her to help with the pain and to allow her to sleep and told her that there is not much she can do. She required medication to assist her with sleeping as she had pain everywhere.

4 Page: 3 Decision No. 240/11 [17] The worker testified that she saw Dr. Kangee a few times but has not seen her in the last couple of years. The worker testified that Dr. Kangee stated that the worker s problem was connected to her continuous work which deteriorated her joints. The worker testified that Dr. Kangee never mentioned osteoarthritis. The worker also testified that she is checked for lupus every three months and the tests have never come back positive. The worker testified that Dr. Kangee advised her that she had fibromyalgia. [18] With respect to her bunions, the worker testified that she has a bunion on her right foot only. When her feet get sore her bunions swell up. (iv) Medical Evidence [19] In December 2003, the worker had a bone density test performed. The report indicated that the worker had a family history of osteoporosis. In the lumbar spine there was an excessive loss of bone. [20] In May 2005, the worker had an x-ray which indicated that there was no abnormality seen in the bones, joints or soft tissue of the feet. [21] Dr. Pinkney (family doctor) reported in the Health Professionals Report (Form 8) dated June 29, 2005 that the diagnosis was bunions on both feet. He recommended orthotics and cushion insoles. [22] Dr. Jones (chiropractor) in an undated report advised that the worker presented to his office on June 24, 2005 with complaints of bilateral foot pain that she had been suffering from for some time. Physical examination revealed hypertonicity and adhesions in the plantar fascia of both feet. The worker also had fallen arches in both feet as well as over-pronation in both ankles. Dr. Jones opined that these findings are consistent with plantar fasciitis with probable heel spurs. He indicated that the worker has been given 6 active release treatments for the bottom of her feet. The worker required no medication and should be able to return to work without restrictions. [23] In Board Memo No. 4 dated September 19, 2005, Board Medical Consultant, Dr. Hickman opined on the worker s diagnosis of bunions and stated that while the worker s feet may be painful at work, the work has not caused her conditions. He referred to the Tribunal s Medical Discussion Paper Plantar Fasciitis (Heel Pain) prepared by Dr. Daniels in March 2003 and stated that plantar spurs are incidental and not work related. Dr. Hickman referred to the chiropractor s report which noted foot abnormalities such as over-pronation and fallen arches. Dr. Hickman opined that these conditions may contribute to the worker s symptoms but are not work related. [24] Dr. Graham, (Specialist in Physical Medicine and Rehabilitation) in his report dated September 21, 2005 which was prepared for the worker s LTD provider diagnosed the worker with general osteoarthritis with obvious enlargement and deformity of the IP joints of both hands at the base of the right thumb. He also opined that there was some symptomatic and objective involvement of the hips (particularly on the right), the knees and ankles as well as possibly some involvement of the MTP joints of the great toes. Dr. Graham imposed restrictions of no repetitive or heavy gripping and lifting, no prolonged standing, walking or overhead activities.

5 Page: 4 Decision No. 240/11 He opined that given the obvious structural problems in the musculoskeletal system and the fact that the worker s osteoarthritis may well worsen over time, the duration of the restrictions is indefinite. [25] Dr. Bahmann s (family doctor) report dated January 13, 2011 stated that the worker was first diagnosed with plantar fasciitis and arthritis of her feet by Dr. Pinkney. Dr. Bahmann has attended to the worker since 2007 when Dr. Pinkney retired. He reports that the worker has been referred to Dr. Yee for her bunions but was has not been seen by Dr. Yee. He reports that her treatment has been Tylenol and anti-inflammatories as well as orthotics as prescribed by her chiropractor. Dr. Bahmann opines that her problems are caused by her work conditions which involved standing on wet and cold floors and putting in many hours of work. He currently diagnoses her with osteoarthritis and traumatic arthritis as a result of her working conditions and fasciitis. [26] Dr. Pinkney s summary of visits by the worker indicated that the worker did not see Dr. Pinkney for any reason from September 2000 to March The first reports of foot pain are in March Dr. Pinkney recorded that the worker has had sore feet for 2 months. (v) Submissions [27] The worker s representative submitted that the worker started having numerous problems including her feet since 1999 when things changed at work which ultimately ended up in the worker leaving work in The worker worked in an environment that was not heated and wet. [28] The worker s representative submitted that the worker reported pain and numbness in her foot in 1998 to Dr. Pinkney and Dr. Ogundimu radiating from her back. The worker s representative submitted that after 1999, the pain was different. He referred the Panel to the report of Dr. Jones who was the worker s chiropractor. The worker s representative submitted that Dr. Jones examined the worker and diagnosed bilateral foot pain. [29] The worker s representative referred the Panel to the Health Professionals Report dated June 29, 2005 completed by Dr. Pinkney in which Dr. Pinkney diagnosed bunions on both feet and he recommended orthotics and cushions for her work boots. [30] The worker s representative referred the Panel to Dr. Graham s report dated September 21, 2005 in which Dr. Graham diagnoses the worker with generalized osteoarthritis. He also referred the Panel to Dr. Bahmann s report dated January 13, 2011 which diagnosed the worker with osteoarthritis and traumatic arthritis from working long hours in cold and wet conditions. [31] The worker s representative also referred the Panel to the Tribunal s Medical Discussion Paper on Plantar Fasciitis (Heel Pain) dated March 2003 and prepared by Dr. Daniels. The Panel asked the representative for submissions on Dr. Daniels statements that there is no established causation between plantar fasciitis and the type of footwear, walking surface and employment or chronic repetitive activity. The worker s representative submitted that Dr. Daniels only states that causation has not been proven but Dr. Bahmann s letter provides the proof necessary for the Panel to grant entitlement.

6 Page: 5 Decision No. 240/11 (vi) Law and policy [32] Whether the worker s date of injury is 1999 or 2005, 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. [33] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #7, would apply to the subject matter of this appeal: Package #1 - Initial Entitlement Package #300 Decision Making/Benefit of Doubt/Merits and Justice [34] We have considered these policies as necessary in deciding the issues in this appeal. (vii) Analysis [35] In order to grant initial entitlement, adjudicators use a five point check system as outlined in Board Operational Policy Manual Document No An allowable claim must have the following five factors: 1. An employer 2. A worker 3. Personal work-related injury 4. Proof of accident 5. Compatibility of diagnosis to accident or disablement history [36] An accident includes a disablement that arises out of and in the course of employment. Board Policy indicates that this includes a condition that emerges gradually over time or is an unexpected result of working duties. [37] The ARO denied the worker entitlement on the basis that there was insufficient clinical documentation available to draw a clinical connection between the onset of the worker s bilateral foot condition and her employment. This Panel concurs with the ARO and finds that the worker does not have entitlement for bilateral plantar fasciitis and bunions of her feet for the reasons below. [38] The Panel finds that the worker is a poor historian as her testimony is inconsistent with the contemporaneous medical documentation in the Case Record. The Panel also notes that there are discrepancies in her reporting to her treating physicians. For example, the worker testified that she continually visited Dr. Pinkney between 2000 and However, Dr. Pinkney s summary of visits indicated that the worker did not see him for any reason between

7 Page: 6 Decision No. 240/11 September 2000 to March The first record of foot complaints began in The worker also testified that she made a connection between her work and her foot condition in 1999; however there are no medical reports mentioning the foot condition until Finally, the worker testified that Dr. Kangee opined that her foot condition was related to her work. However, the Panel notes that there is no medical reporting from Dr. Kangee in the materials before us. As such, the Panel prefers to rely on the contemporaneous documentary evidence where an inconsistency exists. [39] The Panel was asked by the worker s representative to accept Dr. Bahmann s report as evidence of causation. The Panel is unable to rely on Dr. Bahmann s report. Dr. Bahmann was not the worker s treating physician at the time the worker claims the pain in her feet began. He did not become her doctor until 2007, two years after she left work in The worker s treating physician was Dr. Pinkney. Contrary to the assertions made in Dr. Bahmann s report that Dr. Pinkney diagnosed the worker with plantar faciitis and arthritis, the medical records from Dr. Pinkney only diagnosed the worker with bunions. Dr. Bahmann s opinion that the worker s bilateral foot condition is related to her work is dated 2011, six years after the worker left work. Again, Dr. Bahmann did not begin to treat the worker until 2 years after she left work. Neither Dr. Pinkney nor Dr. Jones, both of whom treated the worker in 2005 after she left work, opined that there was a causal connection between her bilateral foot condition and her work. As such, this Panel is unable to place any weight on Dr. Bahmann s report or his opinion. [40] With respect to the diagnosis of bunions, the Panel notes that Dr. Pinkney never stated that they were related to the worker s working conditions. The Panel also relies on the Board s Medical Consultant s report which clearly opined that the worker s bunions are not caused by her work. The Panel also notes that although the worker testified she ceased working in January 2005, she did not visit Dr. Jones until June Dr. Pinkney s records indicate that she did not visit him at all from September 2000 until March His first notation of foot pain that had existed for 2 months was in March If the worker had foot pain on a long term basis prior to leaving work in January 2005, the Panel would have expected a reference to this in the family doctor s notes. Instead there is no reference. [41] The Panel also relies on the Board Medical Consultant s report which opined that plantar fasciitis is not connected to the worker s working conditions and that based on Dr. Jones report the worker s non-compensable conditions of fallen arches and over pronation are causes of her symptoms. The Board Medical Consultant referred to the Tribunal s Medical Discussion Paper entitled Plantar Fasciitis (Heel Pain), March 2003 prepared by Dr. T Daniels. [42] The Panel also relies on the Tribunal s Medical Discussion Paper prepared by Dr. T Daniels which concluded that it is generally accepted that the primary etiology of heel pain is the result of repetitive tensile forces placed through aging tissue that is no longer capable of tolerating the stresses. While associated factors for this condition have been identified, no one activity is known to be the cause of heel pain.

8 Page: 7 Decision No. 240/11 [43] As stated by Dr. Daniels: Factors such as acute injury, the presence of a heel spur, the type of footwear, the walking surface and employment or chronic repetitive activity (other than athletics) have been proposed, but they have not been established as causative. A correlation between prolonged standing or walking has been suggested, but direct causation is unsubstantiated since heel pain can occur in all types of patients with varying levels of recreational activities and job requirements. The consistency of the surface on which one walks has not been established as a causative or aggravating factor. This is likely because tension, rather than compression, is the primary force which precipitates injury and inflammation of the plantar fascia. [44] The opinions expressed in the Tribunal s Medical Discussion Paper are also consistent with the opinion of Dr. Graham who examined the worker for her LTD claim. Dr. Graham diagnosed the worker with general osteoarthritis. He did not opine that this was work-related. This is consistent with Dr. Daniels opinion that the primary etiology of heel pain is age related. Dr. Graham opined that given the obvious structural problems in the musculoskeletal system and the fact that the worker s osteoarthritis may well worsen over time, the duration of the restrictions he imposed would be indefinite. [45] There are no medical opinions, other than that of Dr. Bahmann, that opine that the worker s working conditions contributed to the worker s symptoms or aggravated her underlying non-compensable condition. The majority of evidence does not support a causal connection between the worker s plantar fasciitis and bunions and her work. As such, we are unable to conclude that the worker has initial entitlement for her bunions or plantar fasciitis.

9 Page: 8 Decision No. 240/11 DISPOSITION [46] The appeal is denied. DATED: June 2, 2011 SIGNED: S. Hodis, M.P. Trudeau, M. Ferrari