WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 3015/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 3015/16 BEFORE: I.R. Mackenzie : Vice-Chair M.P. Trudeau : Member Representative of Employers R.W. Briggs : Member Representative of Workers HEARING: November 18, 2016 at Sudbury Oral DATE OF DECISION: January 13, 2017 NEUTRAL CITATION: 2017 ONWSIAT 136 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 27, 2014 APPEARANCES: For the worker: For the employer: Interpreter: M. Allen, Paralegal Employer representative N/A 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. 3015/16 REASONS (i) Issue [1] The issue under appeal is initial entitlement for a left foot injury. (ii) Context of the appeal [2] The now 53-year-old worker was working as a Personal Support Worker (PSW) at a nursing home when she had an injury to her left foot, which she attributed to the standing and walking involved in her job duties. Entitlement was denied by the Workplace Safety and Insurance Board (WSIB or the Board ) Eligibility Adjudicator (EA) on November 29, 2011 on the basis that the worker did not establish that the injury arose out of and in the course of employment. [3] The ARO determined that the evidence did not establish a causal relationship between the left foot injury or condition and the worker s job duties. (iii) Law and policy [4] The Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. [5] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Initial Entitlement, and Decision Making/Benefit of Doubt/Merits and Justice. We have considered these policies as necessary in deciding the issue in this appeal. (iv) Summary of evidence [6] The worker is a full-time health care aide (or personal support worker) and started working for the accident employer (a nursing home) in She started working full-time hours in The worker testified that since her injury she rarely does overtime but that she did overtime work prior to the injury. [7] According to the employer (in a memo provided to the WSIB in November of 2011), the worker s position involves a combination of standing and walking on a continuous basis with rare sitting. She performed physical demands within the light to medium strength categories on a daily basis. The worker testified that she was responsible for 10 residents on a regular day. She assisted them in getting up in the morning. She then assisted them in the dining room. She was then responsible for bathing two residents. She also changed the beds. She testified that the halls are long and she did a lot of running back and forth answering bells (calls). In terms of weightbearing, the worker testified that she boosted residents into wheelchairs using the fireman lift, a few times a day. [8] The worker testified that she had a permanent injury to her right shoulder and tried to do most of her lifting from the left, thereby putting more weight on her left side. [9] The employer advised the WSIB that the majority of the floors at the nursing home are linoleum over concrete and that linoleum in the older sections of the building had been updated within the previous year.

3 Page: 2 Decision No. 3015/16 [10] The employer reported the worker s injury on November 25, The WSIB EA spoke to the worker on November 29, The worker told the EA that she was just walking at work when she felt a kink in her left ankle. She reported that she had had these kinks at work previously. She told the EA that there was no specific incident involving the left foot. The worker filed a report of accident (Form 6) on December 11, In her report she noted that she first noticed her left foot pain at work, starting in October of 2011, and it gradually got worse. In her testimony, the worker stated that her left foot started to hurt in the end of September or beginning of October of [11] The worker testified that the injury felt like a kinking of the ankle. She would walk with her heel on the floor and it would subside. The worker testified that she had had no injuries to her feet prior to the injury in [12] The worker was diagnosed with OS tibial externum grade III fracture with posterior tibial tendonitis on November 11, An MRI of December 20, 2011 found tibialis posterior tenosynovitis. It also found mild osteoarthritis in the talonavicular joint, ankle joint and calcaneocuboid joint. [13] The worker was off work from November 23, 2011 until March 26, [14] The worker s file was reviewed by Dr. S. Somerville, Occupational Medicine Specialist, on June 8, Dr. Somerville provided a diagnosis of OS tibial externum grade III with posterior tibial tendonitis. Dr. Somerville wrote: While it appears that her job demands include frequent standing and walking, it is evident that she has engaged in many other activities that have affected her left foot as well. Therefore, I cannot say that her left foot condition was caused by her work. [15] The worker was examined by Dr. P. Allison, orthopaedic surgeon, on August 7, He noted arthritic changes in the talonavicular, calcaneal cuboid and subtalar joint that were mild to moderate. He also diagnosed her with tibpost insufficiency. [16] The worker was treated by Dr. J. Lanthier, a Podiatrist, who provided a report on March 4, Dr. Lanthier noted that the injury suffered by the worker was not acute in nature but was a result of microtrauma or repeated constant small amounts of pressure from each step that happened day after day. He concluded that: The worker had a stress fracture of the navicular as a result of chronic microtrauma of talar pressure against the navicular in her left foot secondary to a genetic malformation of an os tibialis externum causing posterior tibial tenosynovitis which was caused by prolonged standing on hard concrete floors, continuous lifting heavy patients, and continuous walking. [17] Dr. R. House, an Occupational Medicine Specialist, provided a report on April 29, He concluded that in addition to having the OS tibialis externum, the worker had developed a navicular stress fracture due to repeated microtrauma, likely associated with her work, in particular the requirement to stand and walk for prolonged periods of time. [18] The worker returned to work on March 26, 2012, on modified duties. She wore a boot for the left foot until June In August or September of 2012 she started using a brace that fit inside her shoe and she wore the brace until January 14, [19] The worker testified that the floors in her home were mostly carpet, other than in the bathroom and kitchen. She testified that prior to her injury she did downhill skiing two times a

4 Page: 3 Decision No. 3015/16 year and skating once or twice a year. She golfed once or twice every two weeks. She also went to dances once every eight weeks. She testified that she did not have problems walking at home. Since her injury she has stopped skiing and skating. She no longer walks when golfing. (v) Submissions [20] The worker s representative submitted that the worker s duties of walking, weightbearing and squatting significantly contributed to the onset of her injury. She submitted that this was supported by the worker s testimony on her work duties and the medical reports in the Case Record. [21] The employer representative submitted that the worker s injury was not caused by work, but was caused by the navicular accessory bone. He submitted that this extra bone has put pressure on the navicular head, where the fracture was. He also submitted that the injury was not acute in nature, but a result of using the foot not just at work but every day. He submitted that the pressure on the navicular head occurred day in and day out, whether the worker was at work or not. [22] The employer representative submitted that Dr. House, in his opinion on the workrelatedness of the injury, did not comment on the contribution of the worker s outside activities to the injury. [23] The employer representative submitted that the worker s injury was a result of a noncompensable pre-existing condition and did not meet the definition of an accident under the Policy. (vi) Analysis [24] The appeal is allowed for the reasons set out in this section. [25] The worker has a pre-existing genetic condition of an accessory navicular bone that was asymptomatic until her reported injury. Included in the Case Record were medical articles on the accessory navicular bone selected by the Tribunal s Medical Liaison Office (MLO). Medical articles selected by the MLO do not necessarily represent the views of the Tribunal and are not binding on the Panel. However, in this case the articles provide some useful background on epidemiology and etiology of the accessory tarsal navicular bone. The article from Physiopedia, edited by C. De Coster, states: The foot and ankle have numerous accessory ossification centres. But the most common is accessory tarsal navicular bone occurring between 4-14% of population. People who have an accessory navicular often are unaware of the condition if it causes no problems. However, some people with this extra bone develop a painful condition known as accessory navicular syndrome when the bone and/or posterior tibial tendon are aggravated. This can result from any of the following: Trauma, as in a foot or ankle sprain Chronic irritation from shoes or other footwear rubbing against the extra bone Excessive activity or overuse [26] The medical article also states that differential diagnosis includes stress fracture and tendinitis.

5 Page: 4 Decision No. 3015/16 [27] In another medical article provided by the MLO, titled Os tibiale externum, by Professor F. Gaillard (taken from Radiopedia.org), it is noted that most cases of accessory navicular (also known as os tibiale externum) are asymptomatic but in a small proportion of cases it may cause a painful tendinosis due to traction between the ossicle and the navicular. A type 3 accessory navicular, which the worker has been diagnosed with, is described as an especially prominent navicular tuberosity. [28] Section 13 of the WSIA applies to this appeal: (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. [29] Section 2 of the WSIA defines accident as including: (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment; ( accident ) [30] Operational Policy Manual (OPM) Document No ( Adjudicative Process ) sets out the five point check system for an allowable claim: An employer A worker Personal work-related injury Proof of accident, and Compatibility of diagnosis to accident or disablement history. [31] OPM Document No defines disablement as including a condition that emerges gradually over time and as an unexpected result of working duties. A probable causal relationship must exist between the activities at work and the injury to show that the injury arose out of the employment. [32] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor: see, for example, Decision No [33] In order to grant entitlement, we must be satisfied that the worker s duties at work significantly contributed to the onset of the injury to her left foot. In this case, the prolonged standing, walking, squatting and weight-bearing by the worker resulted in the accessory navicular bone causing a posterior tibial tendonitis and a stress fracture. Activities outside of work likely also contributed to the injury. However, given the amount of time at work, the Panel finds that the work duties were a significant contributing factor to the injury of the foot. It is important to note that Dr. House stressed the importance of prolonged standing and walking in his report. The other activities outside of work done by the worker did not generally involve prolonged standing or walking.

6 Page: 5 Decision No. 3015/16 [34] The Panel s conclusion is supported by the medical articles provided by the MLO and the opinions of medical professionals on the worker s condition. Tendonitis and stress fractures can result from chronic irritation from shoes and excessive activity or overuse. In addition, the article by Professor Gaillard notes that painful tendinosis can result from an accessory navicular. The reports from medical professionals in the Case Record also support the Panel s finding. Dr. Lanthier concluded that the stress fracture was a result of prolonged standing on hard concrete floors, continuous lifting and continuous walking. Dr. House concluded that it was likely that the worker developed a stress fracture as a result of her work, in particular the requirement to stand and walk for prolonged periods of time. [35] Although Dr. Somerville could not say whether her left foot condition was caused by her work, she did not say that it was not caused by her work. Dr. Somerville recognized the frequent standing and walking in the worker s job. Dr. Somerville was of the view that the worker was engaged in other activities that affected her left foot as well. As noted above, the requirement for entitlement is that the work duties were a significant contribution to the injury, not the sole contribution. [36] The Panel therefore concludes, on a balance of probabilities, that the worker has initial entitlement for the posterior tibial tendonitis and stress fracture of the left foot.

7 Page: 6 Decision No. 3015/16 DISPOSITION [37] The appeal is allowed as follows: the worker has initial entitlement for posterior tibial tendonitis and stress fracture of the left foot. [38] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: January 13, 2017 SIGNED: I.R. Mackenzie, M.P. Trudeau, R.W. Briggs