Decision #38/09 - Type: Workers Compensation

Preamble

A file review was held on March 11, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the Workers Compensation Board (“WCB”) on June 28, 2007 claiming that her right foot condition, diagnosed by her treating physician as heel spurs and tendinitis, was related to the following repetitive work activities as a housekeeping aide: standing, walking, climbing ladders to change curtains, stretching and reaching to sanitize beds, squatting to get underneath beds, stripping/waxing floors and basic cleaning. The worker reported that it was two years ago when she noticed her symptoms. She stated that she purchased orthotics, had a cortisone shot, but nothing helped and the pain progressed. The worker described her foot symptoms as “pain at the bottom of my right foot, on the heel, the back of my foot was bulged out, you could see it, and then the pain was going around the bottom part of my right ankle. With the constant walking, I was trying to keep my heel off the floor, walking to the side of my foot…I’ve changed runners about 3 to 4 times in the last little while. Foot seems to be worse in the morning, and when at work I was trying to keep my foot to the side because of the pain. I would end up stopping work for a few minutes, taking my shoe off, and my foot felt like it was swelling as soon as I stopped. Physiotherapy was saying that my foot is getting inflamed again because of all the walking.” The date of injury was recorded as being May 24, 2007 and the injury was reported to the employer on June 22, 2007.

The employer’s accident report dated June 28, 2007 indicated that the worker’s heel spurs/achilles tendonitis was from being on her feet and stretching. The employer indicated that the worker told her supervisor on June 21 that her foot problem was not work related and that she was filing with unemployment insurance. The worker later told her supervisor that her physiotherapist told her to claim with the WCB.

When speaking with a WCB adjudicator on July 17, 2007, the worker confirmed the onset of her symptoms started two years ago and that it was just starting to act up now. She indicated there was no change in workload or duties but she found it extremely busy. Over the last two years they had worked two floors on the weekend. The worker related her symptoms to being on her feet on a constant basis. She worked full time and only changed curtains on an as-needed basis. She used a five step ladder when changing the curtains.

In an adjudicative decision dated July 17, 2007, the worker was advised that the WCB was unable to establish risk factors in her job duties to establish a relationship between her diagnosed condition of plantar fasciitis to her work duties. As a result, the WCB was unable to accept responsibility for any time loss or medical costs associated with her injuries.

On October 20, 2008, a worker advisor appealed the July 17, 2007 adjudicative decision to Review Office. The worker advisor submitted that the worker’s duties of constant walking, standing and the increased work load was consistent with the causes for plantar fasciitis. The worker advisor noted that the worker was assessed by an orthopaedic specialist on June 11, 2008 and was diagnosed with “chronic tendonitis about the right hindfoot from achilles’ tendon plantar facia and posterior tibial tendon.”

As the worker advisor’s submission contained new medical information that had not been seen by primary adjudication, Review Office referred the file back to that department to consider the report.

In a memorandum dated October 29, 2008, the adjudicator noted that she contacted the worker’s employer and was provided with the following information:

· the worker was a full time employee;

· there was really no overtime in her department; and

· the worker did not work a lot more shifts than normal prior to submitting her claim.

On November 4, 2008, the adjudicator confirmed her earlier decision that she could not relate the worker’s right foot condition to her job duties and therefore no responsibility would be accepted for the worker’s time loss or medical costs associated with her injuries. The adjudicator based her decision on the following factors:

· Posterior tibial tendon injuries generally occurred from a traumatic injury or degeneration. Some predisposing factors to degeneration of the tibial tendon were diabetes mellitus, hypertension, etc.

· The worker did not work any excess shifts beyond her normal shifts;

· The causes of plantar fasciitis were multi-factorial in nature; and

· The worker’s injury was solely to her right foot yet the tasks she related to her injury required both feet.

In a November 12, 2008 submission to Review Office, the worker advisor outlined the position that “…because there is no evidence to support that other factors are the source for her right foot condition and her symptoms arose during the course of employment; that on a balance of probability, her right foot condition is related to the causal work factors of prolonged standing and walking with an increased workload.”

On December 3, 2008, Review Office indicated that based on the totality of evidence, the evidence did not support that the worker sustained an injury by accident as required by workers compensation legislation. Review Office noted that the worker only began to have foot problems in the past few years and they were specific to her right foot only. It noted the diagnosis provided by the orthopaedic consultant in his letter dated June 11, 2008. Review Office indicated that it consulted with a WCB orthoapedic consultant who outlined the opinion that the worker’s foot condition was not caused by her work activities as prolonged walking was not one of the known causative factors. The consultant stated,

“Most peer-reviewed medical literature on the subject of etiology of plantar fasciitis and heel spurs points out that the cause of the condition is poorly understood. There is no doubt that symptom propagation is encountered in certain repetitive activities – e.g. in long distance runners, in the military. However, the daily activity of walking most of the day, every day, does not cause symptoms in most people, and there is no proven causation with respect to daily walking. Conditions known to be associated with plantar fasciitis are obesity and diabetes mellitus, diffuse idiopathic skeletal hyperostosis (DISH) and osteoarthritis.”

On December 9, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of The Workers Compensation Act (the “Act”) provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

The key issue to be determined by the panel deals with causation and whether the worker’s personal injury was caused by an accident arising out of and in the course of employment.

The worker’s position:

The worker was assisted by a worker advisor in her appeal. In a written submission, the worker’s position is that her right foot conditions are a result of her duties as a housekeeping aide and her claim should be accepted. The worker experienced the onset of right heel pain in May 2005 which she related to prolonged standing and walking at work. She sought medical attention and an x-ray revealed osteophytes arising at the insertion site of the plantarus tendon on the dorsal surface of the calcaneus and at the insertion site of the achilles tendon. An injection of Depo-Medrol and the use of heel cushions were recommended and she resumed her regular duties. She was seen again by her doctor in February 2006 for heel pain and was prescribed medication and physiotherapy treatment. She resumed her work duties, but the heel pain became progressively worse and she filed a WCB claim in May 2007. It was the worker’s opinion that there is no other explanation for the onset and progression of her right foot conditions other than her work duties which are heavy and repetitive in nature. She does not suffer from any of the systemic medical conditions that have been associated with plantar fasciitis and she is not involved in any other activities which would result in these conditions.

Analysis:

In order for this appeal to be successful, the panel must be satisfied that an accident has occurred within the meaning of subsection 1(1) of the Act. We would need to find that the worker’s medical condition was caused by her work duties. The panel was not able to find that there was a causal connection between the development of the worker’s right foot condition and her employment.

In reaching this conclusion, the panel placed significant weight on the following:

  • There is no evidence of a specific event that could have caused an acute injury to the worker’s right foot.
  • With respect to the repetitive or overuse causes of plantar fasciitis and posterior tibial tendonitis, the panel notes the comments of the WCB orthopaedic consultant on the general etiologies of these conditions in his memo of November 27, 2008. He states that “Most peer-reviewed medical literature on the subject of etiology of plantar fasciitis and heel spurs points out that the cause of the condition is poorly understood. There is no doubt that symptom propagation is encountered in certain repetitive activities – e.g. in long distance runners, in the military. However, the daily activity of walking most of the day, every day, does not cause symptoms in most people, and there is no proven causation with respect to daily walking…” The panel’s view is that these comments mirror its own understanding of the etiologies of these conditions, and the panel therefore adopts the list of etiologies as described by the WCB orthopaedic consultant.
  • The panel has carefully reviewed the job descriptions and the extensive information on the file with respect to the worker’s job duties. The panel notes that the worker does indeed have a very busy job as a housekeeping aide in a hospital. However, the panel finds that her job tasks involve a long list of varied activities done for short periods of time, using various parts of the body. In particular, the panel did not find the types of increased or repetitive activities akin to long distance running or military exercises that would place the types of stressors on the plantar fascia that might lead to a workplace injury, as outlined by the WCB orthopaedic consultant.
  • The panel has also considered the worker’s assertions that standing and walking, or extensive bending and reaching and stretching or climbing ladders were causative of her right foot problems. The panel finds that these types of activities do not find support in the medical literature as known causes of the worker’s right foot conditions. The panel has no basis to relate the worker’s performance of those particular sets of duties to the development of plantar fasciitis, heels spurs and posterior tibial tendonitis. The panel notes as well that there are no medical opinions linking these activities to the onset of her right foot medical conditions.

Based on these findings, the panel has concluded, on a balance of probabilities, that the worker’s right plantar fasciitis, heel spurs and posterior tibial tendonitis were not caused by her job duties as a housekeeping aide. As such, there is no basis upon which to establish a claim.

The worker’s appeal is therefore denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
D. Zirk, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of March, 2009

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