WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 112/09

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 112/09 BEFORE: R. Nairn: Vice-Chair HEARING: January 6, 2009 at Hamilton Oral DATE OF DECISION: May 11, 2009 NEUTRAL CITATION: 2009 ONWSIAT 1163 DECISION UNDER APPEAL: WSIB ARO decision dated August 27, 2007 APPEARANCES: For the worker: For the employer: Interpreter: M. Platt, Canadian Union of Postal Workers E. Persad 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. 112/09 REASONS (i) Introduction [1] Information on file suggests that the worker, born in 1958, was hired by the accident employer in appropriately For the first nine years of her time with the accident employer, she worked as a postal clerk performing various duties inside the employer s facility. In October 2004, the worker was successful in obtaining a job as an outside relief letter carrier. She started this job in approximately November [2] In a Report of Injury/Disease dated August 3, 1005, the worker outlined what she felt were the causes of pain and discomfort she had developed in her left foot-heel. She related the discomfort to her letter carrying duties and noted that in that position, she performed different walks daily ; was exposed to varying types of weather; had to carry a mail bag which could weigh over 35 pounds; she was a new relief carrier which meant it generally took her longer to perform her duties and her walks were structured in such a way that she was always pivoting and turning to the left. In the Health Professional s Report of August 4, 2005, the worker s family physician, Dr. M. Khaled, provided a diagnosis of severe, recurrent plantar fasciitis/heel spurs. [3] In testimony provided at this hearing, the worker indicated that she continued to perform the letter carrying duties until approximately May 2005 when the pain in her left foot became such that she could no longer continue. The employer offered her modified inside duties as a clerk which she started to perform in the summer of She began working at four hours a day and over the months which followed, gradually increased her hours until she was able to work eight hours a day, at the clerk position, by approximately November She continued in this position until the spring of 2006 when she made an attempt to return to modified duties as a letter carrier. In her testimony, the worker indicated that by October 2006, she had decided to return to her inside clerk position and the transfer was made effective November 1, The worker continues to perform these duties today. [4] The worker requested that the WSIB ( the Board ) recognize her left foot condition as compensable and award her the appropriate loss of earnings ( LOE ) benefits. In the course of considering the worker s request, the Claims Adjudicator asked for a medical opinion and in Memo #7 dated October 21, 2005, Dr. A. Balinson of the Board concluded: Opinion: After a view of med info on file, it would appear that there is no evidence of direct trauma to LT heel that would be responsible for dev't plantar fasciitis. Dx would not appear compatible with work activities. [5] In light of the comments from Dr. Balinson, the Claims Adjudicator issued a decision dated October 27, 2005, in which he denied entitlement for the left foot disablement claim from May 31, [6] The worker objected to the conclusions of the Claims Adjudicator and the matter was eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated August 27, 2007, the ARO denied the worker s appeal and concluded: I considered all of the evidence pertaining to this case. In doing so, I would have to confirm the denial of entitlement for plantar fasciitis and heel spurs. The reasons are as follows:

3 Page: 2 Decision No. 112/09 The worker had a prior right foot plantar fasciitis, while working in the plant on flat surfaces and while she was a postal clerk in This suggests a predisposition to plantar fasciitis problems, regardless of the surface walked on or the length of time spent walking; Although Mr. Platt suggested that there was trauma to the foot to support a diagnosis of plantar fasciitis, I am unable to conclude same. The change in job duties would not constitute trauma to the worker s foot ( ) With respect to the December 23, 2004 ice storm, the worker herself testified that although she got a charlie horse, she could not even say whether or not walking this day made her foot condition worse. She was just sore all over. She had already been experiencing symptoms leading up to this day at any rate; She provided similar testimony with respect to the June, 2005 incident; specifically, she was unable to recall any further injury to her foot ( ) Although the worker has returned to inside duties, she continues with symptoms ( ) The ongoing symptoms, despite the fact that she is no longer involved in letter carrying activities suggests that the work duties were not in fact a significant contributing factor in either the development or aggravation of the worker s plantar fascitis symptoms; The Medical Consultant reviewed the file and noted that in the absence of trauma to the foot, the diagnosed plantar fasciitis and heel spurs of the left foot were not compatible with the worker s job duties ( ) (ii) Issue on appeal [7] The issue to be determined in this case is whether the worker has initial entitlement to benefits for left plantar fasciitis/heel spurs which the worker claims can be causally related to the nature of her employment as a relief letter carrier. (iii) The worker s testimony [8] In her testimony, the worker confirmed that she has worked with the accident employer for about 15 years. She spent nine years working as a postal clerk in one of the employer s plants and in October 2004 was successful in obtaining a transfer to work as a letter carrier. This work began in November [9] As a postal clerk, the worker performed a variety of duties inside the plant, on concrete floors with fatigue mats. These duties included feeding and sweeping stations. At a feeding station, the worker would be responsible for feeding raw mail into a sorting machine. The walking would be limited with the worker only having to move about five feet to bring a load of mail to the machine. When involved with sweeping, the worker would be gathering the sorted mail and taking it to another location less than ten feet away. When working as a postal clerk, the worker would also perform coding duties which involved sitting at a computer and inserting postal codes which could not be read by the machine. A clerk would also perform manual sorting duties which involved standing at a station and sorting mail which had been rejected by the sorting machines. [10] The worker indicated that she normally worked an eight hour shift as a postal clerk and this included two 15-minute breaks and a half hour for lunch. While the clerks were rotated among the various positions, the worker estimated that while there was little actual walking involved, she might spend half of her day on her feet.

4 Page: 3 Decision No. 112/09 [11] In late 2004, with her children having grown, the worker decided she might like to work a dayshift. Her job as a postal clerk had involved primarily night work. Unfortunately, the only dayshifts available to her were in the position of letter carrier. She decided to apply for one of the positions and was successful in obtaining work as a relief letter carrier, working the dayshift. [12] The worker described the duties of a letter carrier and indicated she would normally arrive at work about 7:00 a.m. and was permitted two to three hours to sort her mail and place it into bags. These bags would then be taken by truck to the various relay boxes on her route. When she left the plant, she would be taken by taxi to her route along with her satchels filled with mail to cover the initial portion of her route. She estimated that the satchels would weigh about 35 pounds. [13] As a relief letter carrier, the worker had no route of her own. She would be sent to deliver mail wherever there was a vacancy on a particular day, i.e. when another letter carrier was ill. Since these routes were all new to her, it often took her longer to sort the mail and to deliver it. [14] Under questioning from her representative, the worker acknowledged information on file which indicated that in December 2001, she had filed a claim with the Board concerning an onset of pain in her right foot which was related to moving equipment in her job as a postal clerk. She testified that the right foot pain came on gradually and resolved in about four months. She did not lose any time from work and indicated it was actually management that suggested she should fill out the WSIB forms. She never had any further issues with her right foot. [15] The worker also confirmed information on her Report of Injury/Disease which indicated that on December 1, 2004, she felt strain to outside left ankle. She was not sure what actually caused this discomfort but thought it was just part of her getting used to the job of letter carrier. She advised the employer of this discomfort and wrapped her foot in a tensor bandage. She testified she had never experienced any previous problems with her left foot either inside or outside of her employment. [16] On December 2, 2004, the worker visited her chiropodist and new orthotics were ordered to assist with her discomfort. Apparently she had been wearing orthotics since 2001 when she had experienced the problems with her right foot. She testified that while she did not have any problems with her left foot in 2001, orthotics were always ordered for both feet. [17] On December 23, 2004, the worker was delivering mail in the aftermath of a severe snowstorm. Since many of the sidewalks were not cleared, she had to do much of her walking on the road. On one occasion, as she tried to access a house, she had to step through a snowbank and ended up with snow up to the area of her waist. She had to roll out of this snowbank to continue with her duties and found the rest of the day to be very strenuous on her left foot. [18] She took the next day off to recover from the effects of the snowstorm and then after Christmas, was off for a few days because of the stomach flu. At this point, she still felt that as time progressed and she became more familiar with her job, it would become easier and the pain would decrease. [19] In February 2005, with her left heel pain continuing, the worker began to receive cortisone shots from her chiropodist. She felt that these helped control her pain somewhat and she was also assisted by the fact that occasionally, she would be assigned to relieve other carrier assistants who performed inside duties helping to organize the mail for delivery. While most of

5 Page: 4 Decision No. 112/09 the first three months of her time was spent performing delivery duties, she had the occasional inside shift during February and March In April 2005, she was off work on holidays for about three weeks. [20] By May 2005 however, the worker found that the pain in her left foot was becoming quite severe and on May 20, 2005, she had a third cortisone shot from her chiropodist. Unfortunately, this was not particularly helpful and she eventually raised the matter with her family physician who provided her with a note dated June 14, 2005 authorizing her to be off work until July 4, [21] At this point, the employer offered her modified inside duties as a clerk which did not involve any walking. She began these duties on approximately July 15, 2005, and worked four hours a day. When not working, she would attend physiotherapy about three times a week. Over the months which followed, the worker gradually increased her work day to eight hours a day by about November She continued to work at these duties until about the spring of 2006 when she attempted to return to the job of letter carrier. At this point, she was given the job of a mobile letter carrier which involved delivering mail to community mail boxes. She thought this might be suitable because there was much less walking involved. She tried the job for a couple of months but because of a concern about what might happen to her left foot, she requested a transfer to go back to her position as a postal clerk. The transfer was eventually approved and she went back to her original job as of November 1, [22] The worker testified that since returning to her inside postal clerk duties, her pain has become tolerable but has not disappeared. While she can now take walks for pleasure, she still must be careful about what she does and tends to walk slower than she did prior to [23] The worker was questioned about suggestions in the claim materials that she had been seeking entitlement for a bilateral foot condition. The worker denied she had ever made such a request and confirmed she had never had any ongoing right foot problems since When asked about reports on file which suggested she had some treatment for her right foot in 2005, the worker indicated that this was likely due to the fact that she had been favouring her right foot because of her ongoing left foot pain and that this treatment was relatively minor and was provided only while she was undergoing treatment for her left foot. (iv) Analysis [24] The materials before me include a Discussion Paper entitled Plantar fasciitis (heel pain) prepared for the Tribunal by Dr. T. Daniels of the Division of Orthopedic Surgery at St. Michael s Hospital in Toronto. In this Discussion Paper, Dr. Daniels indicates in part: There is no consensus regarding etiology. Snook and Christman wrote, "it is reasonably certain that a condition which has so many different theories of etiology and treatment does not have valid proof of any one cause". Factors associated with or aggravating this condition are better defined: age, sex, obesity, seronegative inflammatory disorders and activity levels. The average age is 45 years. Prevalence is twice in females vs. males. There may be a history of elevated stress to the foot as a result of increased activities, prolonged standing or weight gain. Physical activity certainly aggravates and can sometimes precipitate the heel pain. A retrospective review of injuries among runners cited plantar fasciitis as one of the five most common injuries. ( )

6 Page: 5 Decision No. 112/09 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. ( ) ( ) 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. [25] In support of his position that the ARO s decision ought to be upheld and the worker s appeal denied, the employer s representative submitted that the worker s duties as a letter carrier were not a significant contributing factor in the onset of her condition. Referring to the comments of Dr. Daniel, the employer s representative suggested, in essence, that the worker s symptoms of plantar fasciitis were, more likely than not, simply the result of an inflammatory/aging process taking place in this worker s foot and as a woman, in her mid-40s, the worker was more likely to have experienced these symptoms whether she had worked as a letter carrier or not. [26] While I acknowledge the theory put forward by the employer's representative, I cannot agree with it. While it may well be that there is no consensus regarding the etiology of plantar fasciitis and that a direct causal link between heel pain and prolonged standing or walking has yet to be substantiated, a worker ought not to be denied entitlement to benefits because of a lack of medical certainty on an issue of causation. In order for the worker to be successful in this appeal, she must establish only that it is more probable than not that her duties as a relief letter carrier made a significant contribution to the onset of her left plantar fasciitis. After reviewing all of the information before me, including the worker s testimony, I am satisfied that the balance of evidence supports such a relationship. In reaching that decision, I have taken particular note of the following: There is no evidence to suggest that the worker experienced any problems with her left foot prior to starting work as a letter carrier. As noted in the worker s testimony, there was a significant difference in the nature of the duties she performed when working as a postal clerk and then as a letter carrier. As a postal clerk, the worker had scheduled breaks and performed much of her job while seated. While she might spend half of her time standing, there was little walking involved. In November 2004 however, there was a dramatic change to nature of the worker s duties in that she spent two to three hours a day standing to sort mail and then approximately four hours a day delivering mail over a variety of terrains and in a variety of weather conditions. In his Discussion Paper, Dr. Daniels suggests that: There may be a history of elevated stress to the foot as a result of increased activities, prolonged standing or weight gain. Physical activity certainly aggravates and can sometimes precipitate the heel pain. In my view, given the nature of the change in the worker s duties, there would clearly have been elevated stress to the worker s left foot. In his report of November 8, 2005, Dr. R. Carbin (orthopedics) notes:

7 Page: 6 Decision No. 112/09 Certainly her recent foot pain through the tarsal region, which has been associated with her increased walking activity when her job changed, is most likely related to this. The worker underwent a bone scan of the left foot on March 10, 2005 and the results were interpreted by Dr. M. McGinley who indicated: Given the history, the activity is consistent with underlying stress injury/stress fractures. An MRI of the left foot was conducted on January 19, 2006 and a radiologist Dr. K. Ting indicated: The following is consistent with plantar fasciitis with questionable tear of the plantar aponeurosis near the calcaneus. None of the medical reporting has suggested factors other than the worker s job which might be responsible for her condition. As noted earlier, there is no evidence to suggest that the worker has injured her left foot in any other incident, either inside or outside of her employment. While I acknowledge the opinion provided by Dr. Balinson in Memo #7, I prefer to place greater evidentiary weight on the comments of Dr. Carbin, a physician who has had the opportunity to actually examine the worker. In his report of July 18, 2007, Dr. J. Bradford (reconstructive foot surgery) noted that since she returned to the job of an inside postal clerk, the worker has become less symptomatic, although she still remains symptomatic but to a lesser degree. The ARO suggested that the fact the worker s symptoms continued after she was removed from letter carrying duties supported a conclusion that those duties were not significant contributing factors in the plantar fasciitis symptoms. In my view however, the fact that one s symptoms may lessen after being removed from an aggravating activity, can just as easily suggest that it was those activities that led to the onset of the problem. During the course of a hearing, there was much discussion about whether the worker s right foot problems were indicative of her having a pre-existing susceptibility to plantar fasciitis. While the worker acknowledged having filed a claim for a right foot problem in 2001, I accept the worker s testimony that the right foot problems were virtually non-existent thereafter. While the worker may well have had some treatment for her right foot while undergoing treatment for her left foot in 2005, the left foot was clearly the main concern. It does not seem unreasonable to suggest, as the worker did in her testimony, that the pain she was experiencing in her right foot may well have been due to her placing increased weight on that foot because of the problems with her left foot. In the Initial Assessment of July 26, 2005, the worker s physiotherapist noted the worker s complaints of minor pain in her right foot. This was followed by a August 18, 2005, clinical note which indicated in part R foot feels really good and a September 2, 2005 note which indicated [No] problems with R foot. Once again, in my view, the balance of evidence supports a conclusion that any problems the worker may have experienced with her right foot were very minor and were not indicative of any predisposition to developing plantar fasciitis. [27] In summary, this case involves a worker with no prior history of left foot problems who began to experience pain and discomfort in that area within a month of undergoing a significant change in her job duties. After working for about nine years as an inside postal worker, the worker switched jobs to become a relief letter carrier. In addition to starting this job at a time

8 Page: 7 Decision No. 112/09 when there were high mail volumes and inclement weather, the worker had to spend virtually all of her day standing and walking, delivering mail over a variety of terrain. Given the information noted above and the lack of evidence concerning alternative causes, I am satisfied it is more probable than not that the worker s duties as a letter carrier contributed significantly to the onset of her left plantar fasciitis. As such, the worker is entitled to LOE benefits for the associated lost time. The issue of the exact quantum and duration of those benefits will be returned to the Board for further adjudication.

9 Page: 8 Decision No. 112/09 DISPOSITION [28] The worker s appeal is allowed. [29] The worker is granted initial entitlement for left plantar fasciitis. [30] The worker is entitled to loss of earnings benefits for the associated lost time. The issue of the quantum and duration of those benefits will be returned to the Board for further adjudication. DATED: May 11, 2009 SIGNED: R. Nairn