The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's left foot condition met the criteria outlined under WCB Policy 44.10.20.10 Pre-Existing Conditions, and therefore his claim for compensation was acceptable. The employer disagreed with Review Office and an appeal was filed with the Appeal Commission. A hearing was held on February 21, 2013 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 WCB for left foot/heel difficulties that began at work on February 3, 2012. The worker's job duties involve walking on a regular basis. The worker reported that when he started walking during his shift on February 3, 2012 his left heel began to ache. He attended a chiropractor for treatment hoping that it would help. He was fitted with orthotics. On April 18, 2012, he reported his foot difficulties to his employer as he continued to have pain in his foot and his physiotherapist advised him to stay off his feet.

Information from the employer dated April 18, 2012 indicated that the worker came in on the morning of April 18, 2012 to start the claim process. The worker indicated that he had spoken to his doctor and would need to be on modified duties or off work due to having plantar fasciitis or heel spurs. The employer noted that the worker had a similar problem with his other foot a few years back and it went away but the pain in that foot came on gradually and the pain in this foot came on all at once. The worker did not know of a specific location or area where it started to hurt. There was no specific injury event.

On April 19, 2012, the employer's representative commented that there was no traumatic incident, accident or event to account for the worker's pain. She stated: "In order to accept that [the worker's] pain is the result of work place activities, we must be able to determine a cause and effect relationship. We cannot do this without evidence of a work related incident or traumatic event being reported. Further, it is our understanding that the WCB is not obligated to pinpoint the cause of an injury. Rather, it is their position to determine if a worker sustained an injury as set out in Policy 44.05.10 of the WC Act which expands on the definition of an "accident" under GECA…"

A WCB adjudicator spoke with the worker by telephone on April 30, 2012. The worker confirmed that he worked full-time in the same position for 23.5 years. He had been wearing orthotics for seven years. He said the same thing happened to his right foot seven years ago and it fixed itself by wearing orthotics. The worker noted that it took four weeks to get his orthotics after seeing his chiropractor and after two weeks, he felt there was no change in his left foot symptoms. He said his right foot symptoms showed up over time but his left foot symptoms just showed up one day. He recognized the pain as it was the same as his right foot symptoms but the left foot symptoms came on faster. The worker advised that he was currently working modified duties at two hours per day.

Medical information showed that the worker sought treatment from a physiotherapist, a chiropractor and his family physician based on the diagnosis of left plantar fasciitis. On May 7, 2012, a sports medicine specialist diagnosed the worker with resolving plantar fasciosis.

On May 16, 2012, the worker was advised by a WCB adjudicator that his foot injury did not meet the criteria outlined in 4(1) of the Government Employees Compensation Act and therefore his claim for compensation was not acceptable. The adjudicator stated: "Plantar fasciitis is generally not known to be attributed to any specific job or occupation. Medical evidence indicates the causes of this diagnosis were multi-factorial, ranging from anatomical deficiencies to other stressors, such as running, sudden increase in activity, obesity, inadequate shoes or unaccustomed prolonged standing or walking, and the symptoms can occur suddenly or gradually. Although you may experience symptoms with certain activity such as walking, the daily activity of walking even most of the day does not cause symptoms in most people and there's no proven causation with respect (sic) daily walking." In the opinion of the adjudicator, a relationship between the worker's current left heel injury and his job duties could not be established and an accident "arising out of and in the course of" his employment had not been established.

On June 5, 2012, the worker's union representative provided the WCB with reports from the worker's physiotherapist and family physician to support the position that the worker's plantar fasciitis condition was directly related to his job duties.

In a report dated May 30, 2012, the treating physiotherapist stated that in her professional opinion, it was entirely reasonable for the worker's injury to have been caused by his employment. She noted that the worker walked 10 km per day, five days a week in his job, and that it was on concrete and on uneven terrain. The worker also carried a load. She noted that the worker's home and recreational life included no activity that she would consider a contributing factor to his plantar fasciitis.

On June 6, 2012, the family physician reported that the worker walked approximately 10 miles a day at work over a variety of terrains. He had no prior injuries to his heel and did nothing at home that would injure it. "I can only conclude that the cause of his foot injury is work related and ask you to reconsider his claim."

On June 12, 2012, a WCB medical advisor reviewed the file and stated the following:

At this time, I can confirm that the probable diagnosis in this case is left Plantar Fasciosis. I choose the term "fasciosis", as the research literature implies that the condition involves a perturbation of degenerative tendon at the medial calcaneal, enthesis, as opposed to inflammation in the region.

While there have been many associated factors with plantar fasciopathy, there are no known causative factors. I would state that medical conditions which are associated with plantar fasciopathy would be those you have articulated in your letter to the claimant. From my clinical experience, as well as review of the literature, I would state that the following factors have been associated with the development of Plantar Fasciosis pain:

· Walking, running, impact loading on the foot

· Female gender

· Obesity

· Age over 40

· Forefoot over pronation (flatfoot)

· Sudden increase in impact loading/weight bearing activity

· Inadequate longitudinal arch support in footwear

· Regional trauma

· System arthritic conditions

In my opinion, there is an absence of evidence of a pre-existing condition affecting the claimant's left plantar fascia, and therefore, there is no evidence of aggravation or enhancement in this matter.

On June 22, 2012, the worker was advised that there would be no change to the initial decision to disallow his claim. The adjudicator outlined the opinion that the probable diagnosis to account for his left foot injury was plantar fasciosis. The condition involved a perturbation of degenerative tendon at the medial calcaneal, enthesis, as opposed to inflammation in the region. While there were many factors associated with plantar fasciopathy, there were no known causative factors. On June 29, 2012, the worker's union representative appealed this decision to Review Office. The representative submitted that the inordinate amount of walking and standing that the worker performed during his job duties could lead to the gradual onset of plantar fasciitis.

In a decision dated August 21, 2012, Review Office outlined its position that the worker's foot condition diagnosed as plantar fasciitis was a pre-existing condition that was aggravated by his work duties and that his claim was acceptable per WCB Policy 44.10.20.10 Pre-Existing Conditions. Review Office referred to medical evidence on file to support that "A degenerative tendon condition of the foot leading to a symptomatic plantar fascia coupled with a peripheral arthritis would suffice as evidence involving a pre existing condition(s)."

Review Office stated that the evidence on file spoke to the aggravation of a pre-existing condition. The worker had non occupational predispositions for developing plantar fasciitis as well as several occupational hazards known to cause aggravation of this condition. It noted that the worker's pain came on suddenly on February 3, 2012 and was in keeping with plantar fasciitis or fasciosis. By May 7, 2012, the left foot plantar aggravation was starting to resolve and a graduated return to regular duties was recommended. "Given the appropriate medical intervention provided, the abstention from the work related aggravating factors and given the recovery times that are in keeping with norms for this type of injury, [the worker's] plantar fasciosis was on a balance of probabilities aggravated by his work duties."

On September 14, 2012, the employer appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation:

The worker is employed by a federal government agency or department and his claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act of Manitoba (the “Act”).

The key issue to be determined by the panel deals with causation and whether the worker’s claim for left plantar fasciosis arose out of and in the course of his employment.

The employer’s position

A WCB specialist appeared on behalf of the employer at the hearing. The employer's position was that the worker's left plantar fasciosis had not been aggravated by his employment duties. The employer did not disagree that the worker either suffered from a pre-existing condition or developed left plantar fasciitis at the time of symptom onset, but it did disagree that the worker's duties contributed to the condition. Although the worker walked up to 10 kilometers per day, including stairs and uneven ground while carrying a load, he had performed these same types of work tasks since February 1995. There was neither a change in the worker's job activities nor an increase in duties when the symptom onset occurred. It was submitted that the worker did not experience a work injury and was accustomed to the employment duties.

Literature and medical opinions regarding the cause of the condition were reviewed. It was submitted that the physical demands when walking or climbing stairs would not require a force compared to that in a running gait. With respect to impact loading, the employer disagreed that the act of carrying a loaded bag would contribute to impact loading. Other points noted were that the worker stood on fatigue matting for approximately one hour of his day while sorting mail. There was a half hour lunch break as well as two 10 minute coffee breaks. The worker was provided an annual boot and glove allowance to allow the opportunity to purchase good quality footwear to assist in performing duties at work. Finally, the worker walked for 4.78 hours per day. The balance of his day was spent either sorting mail in the office, loading or unloading his vehicle, lunch or coffee breaks and driving his vehicle through his route. He would begin his work day at 7:30 am and finish at 3:30 pm when working a full eight hour day.

Overall, in order to accept that the worker's aggravation of his pre-existing condition was the result of work place activities, the panel must be able to determine a work-related cause and effect relationship. In the employer's opinion, this could not be done without evidence of an increase in duties or change in duties.

The worker’s position:

The worker appeared at the hearing assisted by two union representatives. It was submitted that the WCB's determination that the worker's injury was work-related was a sound one and should be upheld. The worker's route involved approximately 539 points of call, over 400 of which required utilization of stairs. The WCB's decision that the walking involved with the worker's job duties aggravated his plantar fasciosis was well written and reasonable and seemed to take some foundation from the WCB's own medical advisor. It was submitted that the employer's appeal be denied and that the Review Officer's decision be maintained.

Analysis:

In order for the employer's appeal to succeed, the panel must find that there is no causal relationship between the worker's left plantar fasciosis and his work duties. On a balance of probabilities, we are able to make that finding. After considering the evidence as a whole, the panel is not satisfied that the work duties contributed to the worker's diagnosis of left plantar fasciosis, either causally or as an aggravation.

At the hearing, the worker described the onset of his left plantar fasciosis condition. February 3, 2012 was a Friday and on Fridays, the worker's mail load was usually lighter than on other days. He did not remember all the details regarding the day, but he did recall that the condition showed up all at once like a "bang." It was during the morning while he was walking his route. He was walking up a driveway when he suddenly felt a sharp pain in his heel. This differed from the onset of the plantar fasciitis the worker developed in his right foot eight years earlier. In that case, the pain started off very light then gradually got worse over the course of six months until it reached the point where he could not take it anymore and went for medical treatment. The worker estimated the pain onset in his left foot occurred before one o'clock and was prior to the portion of his route which involved second floor condominiums requiring him to walk up and down numerous flights of stairs.

On the day of the injury, the worker was wearing custom casted orthotics which he had worn consistently since the development of his right foot plantar fasciitis. Since they were first prescribed, he had replaced the orthotics once, after approximately two or three years. The worker wore the orthotics on both feet and after he started using them, his right foot condition resolved without recurrence. The footwear worn by the worker was a winter walking boot which was fitted and purchased at a specialty footwear store. The worker stated that his footwear was in good shape at the time and there were no issues of comfort or fit.

The June 12, 2012 medical opinion by the WCB medical advisor set out a number of factors associated with the development of plantar fasciosis pain. He noted, however, that while there were many associated factors with plantar fasciopathy, there were no known causative factors.

Literature submitted by the employer included a medical advisory guideline published by the Workers Compensation Board of Alberta. This material stated:

Plantar fasciitis is usually gradual in onset with few cases attributable to a specific inciting event.

A plantar fascial injury can however occur with direct trauma or forceful stretching of the plantar fascia in a specific event.

Plantar fasciitis has not been shown to be caused by standing or walking (the vast majority of the literature reviewed is silent on the issue of whether or not standing or walking can cause or aggravate plantar fasciitis.) However, it has been directly related to activities that require frequent, forceful, repetitive push-off motions such as those seen in running, tennis, basketball, soccer and gymnastics. The force required to cause plantar fasciitis has been described in the running gait - each foot strike is two to four times that of body weight and occurs 800 to 2,000 times per mile run.

Because of the condition, pain may occur when standing and walking in both occupational and non-occupational settings.

Non-work related factors include:

· Overuse resulting from athletic training error, increased volume of training, increased intensity of training, and hill running;

· Degenerative change, heel fat pad flattening, aging;

· Systemic disorders such as seronegative spondylarthritis, rheumatoid arthritis, gout and nutritional osteomalacia;

· Adverse biomechanics such as hyperpronation, talipes cavus, pes planus, externally rotated lower limb, and leg length discrepancy;

· Poor equipment, e.g. footwear;

· Poor strength and/or flexibility, tight and/or weak triceps surae, tight Achilles tendon.

In order for the worker's claim to be acceptable, there must be a finding that the work duties contributed to worker's diagnosis of left plantar fasciosis. When asked which aspect of his duties caused his condition, the worker could only point to "pounding of the heels without proper support." The difficulty the panel has with this submission is the fact that the worker was wearing custom orthotics and good quality footwear at the time of the sudden onset of pain. The orthotics and footwear would have kept the worker's foot properly aligned and positioned so as to neutralize any effects of his walking. The panel also notes that the onset of the pain was very sudden, so this would suggest that something acute happened to the worker's plantar fascia, as opposed to repetitive trauma from walking. Finally, while running is frequently associated with the condition, the relationship between walking/standing and plantar fasciosis is less certain. The literature does not entirely support walking as an associated factor. As noted by the employer, the worker was already accustomed to the amount of walking he was performing and there was no sudden increase in the volume or intensity of his walking. On the day in question, the worker was still in the earlier part of his route and had not yet delivered the mail to the second floor condominiums. He did not recall his mail load to be heavy and given that it was a Friday, it was probably light. In the circumstances, the panel does not accept that the work duties involved "pounding" which caused him to develop left plantar fasciosis on that date. The evidence is not sufficient to satisfy us on a balance of probabilities that the work duties caused or aggravated the worker's diagnosis of left plantar fasciosis.

The panel therefore finds that the worker's claim is not acceptable. The employer's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of April, 2013