WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110017
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative, Employer, Employer Representative
HEARING LOCATION: N/A
ISSUE
The sole issue in dispute is whether or not the work activities performed by the worker on March 30, 2010 constitutes an accident as defined under the Workplace Safety and Insurance Act (the Act)and Workplace Safety and Insurance Board (WSIB) governing policy.
HOW THE ISSUE ARISES
The worker is employed as a SPD (Sterilizing Processing Department) Attendant at a hospital. On March 30, 2010 she was working in the de-contamination room of the hospital sterilizing instruments. She was working on one work station and turned to move to another workstation when she experienced an onset of right ankle pain. Later in the same shift while talking to a co-worker she experienced a similar onset. The injury as initially diagnosed as relating to the Achilles tendon but has now been identified as being specific to the tibialis posterior tendon. The worker has been off work for an extended period of time and surgery is now contemplated
AUTHORITY
Operational Policy
11 01 01 Adjudicative Process
15 02 01 Definition of an Accident
Legislation
Workplace Safety and Insurance Act, RSO 1998, Section 2
Case Law
WSIAT decisions; 900 06; 1445 07; 430 06 & 1288 03 submitted by the employer representative
WSIAT decision 72 referenced by the worker representative
WSIAT 1672 04 & 238 10 as reviewed by the Appeals Resolution Officer
RESOLUTION METHOD AND PROCESS
The parties were contacted by way of letter dated January 6, 2010. This letter clarified the mechanics that were being accepted as occurring on March 30, 2010 and defined the issue in dispute as whether an accident occurred as defined by legislation and policy. The parties were invited to make written submissions specific to the issue. The worker representative provided a submission on January 10, 2011. The employer’s representative’s submission was dated January 24, 2011.
ASSESSMENT OF THE EVIDENCE
My letter of January 6, 2011 as noted above outlined the accident history as I understood and was willing to accept.
We discussed that the objection is largely an issue as to whether the documented onset of ankle pain at work and the mechanics involved constitute an accident, as defined by the statute and operating policy.
From my review the mechanics that I am willing to accept is that the worker while in the course of her employment, moved from one work station to the other to place or retrieve instruments. This activity would necessitate a turn or pivot; however there is no evidence of a discrete slip or twist event.
The parties in their subsequent submission do not dispute my interpretation and as a result the accident history as described above is not in dispute.
The question that needs to be answered is whether the relatively innocuous movement of turning to place or retrieve instruments constitutes an accident as defined by policy.
Section 2 of the Act defines an accident as
(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) a disablement arising out of and in the course of employment.
Supporting policy Definition of an Accident document 15 02 01 expands on this definition of chance event as follows:
A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
A disablemetnn arising over time is further defined as a
a condition that emerges gradually over time
an unexpected result of working duties.
Submission of the parties
The worker representative in his submission suggested that an accident has been established in that the onset of ankle pain was a chance event. That is the ankle pain arose out of an unexpected / unintended event of moving her foot and pivoting to her left while grabbing “a set up” He referenced decision # 72 of the Workers Compensation Appeals Tribunal to support that the “a sudden unexpected injury is both the injury and the accident”.
The employer’s representative in their submission maintained that there is no definable chance event or disablement. That is to say the act of turning was not an identifiable unintended event and maintained that the onset of ankle pain is not in itself an accident. He disputes the use of Decision #72 issued in 1989 which from his perspective has been eclipsed by subsequent case law. In addition the submission argued that the diagnosis of tibialis posterior tendon dysfunction was not compatible with the work activity. In support of his arguments the employer representative submitted medical documentation from various websites specific to the diagnosis of tibialis posterior tendon dysfunction. He also attached WSIAT decisions 900 06; 1445 07; 430 06 AND 1288 03
Review of Case Law
I have reviewed the WSIAT decisions submitted by the employer representative. I will summarize them briefly
WSIAT 1288 03
The fact situation in this decision involves a dealer at a casino who leaned slightly forward to retrieve a chip from the roulette table and felt an onset of low back pain. The decision explored the two avenues to entitlement; chance event and disablement. The Panel confirmed the definition of a chance event as “an identifiable unexpected event which causes injury”. It confirmed the interpretation that the injury itself is not a chance event and the Panel concluded that event of picking up the poker chip did not cause the injury.
The incident of picking up the a chip, although an act at work that was contemporaneous with low back pain, that this was not a significant contributing factor in causing the worker’s low back pain
Since the event did not cause the low back pain the Panel concluded a chance event did not occur. Entitlement due to chance event was ruled out.
The Panel then went on to discus if entitlement could be extended as a result of a disablement that is “an unexpected result of work duties”. After reviewing the PDA’s and two ergonomic reviews the Panel also concluded the job did not have significant risk factors for the development of back pain.
WSIAT 430 06
Under this decision the fact situation is that of a worker walking on a flat surface when he experienced a sudden onset of low back pain. The Vice Chair concluded in the presence of a pre existing condition spondoylosis and prior low back accidents along with a degree of symptomolgy immediately before the acute onset that “ the evidence is more in keeping with the pain occurring spontaneously.. the low back pain was as a result of his underlying condition rather than a result of his employment.” The fact situation does not mirror the case before me as there is no evidence of a significant pre existing symptomatic condition. The WSIAT decision does confirm the principle that there must be a work relationship to the injury and it is not sufficient that the pain arises at work but that there must be something about the work that caused the injury.
WSIAT 1445 07
The remaining two decisions cited by the employer representative were both authored by the same Vice Chair. They use similar reasoning. WSIAT decision 1445 07 involves a fact situation where the accident history was disputed. The worker presented a specific event as the cause. The Vice Chair did not feel the worker or his version of events was credible. He then adjudicated the case on the basis that nothing specific happened at work and concluded there was no accident. In this case as well there was a history of an ongoing prior low back condition.
WSIAT 900 06
The second decision from the same Vice Chair WSIAT 900 06 involved a fact situation of an overhead crane worker descending the steps for coffee break who abruptly turned to go back up the steps and sustained an onset of calf pain
Vice chair concluded the act of turning on the stairs even abruptly is a normal every day occurrence and not an identifiable unintended event. He then made the following analogy
In my view it would be difficult to establish for an office worker that was reaching for a telephone or pencil on ones desk that leads to neck or back pain is a work accident. While the incident occurred at work the simple act of reaching in that way could hardly be stated to be an unintended event”.
The fact situation in this decision is similar to the one before me in that the claimed injuring process is a turn without a twist slip or fall. The Vice Chair in my view trivialized the actual accident history as normal every day occurrence where I would not have come to the same conclusion as the worker was descending a ladder stairway from a height and turned to reverse directions rather suddenly. However, the analogy used is not unlike the fact situation in claim before me where the worker turned to retrieve an item with an onset of ankle pain.
Other Case Law Reviewed
For the purposes of gaining a fuller understanding of the jurisprudence concerning the definition of accident I expanded my review of the case law to decisions not specifically referenced by the representatives. In my view it was appropriate to do so. In some cases the additional WSIAT decisions looked at were cited in the decisions submitted by the parties. In other cases they are identified as leading or significant cases on this particular issue. It is important for a decision maker to be satisfied that the case law submitted is not merely a selection of cases that support a particular view but rather is reflective a larger body of decisions that suggests a trend in interpretation of the statute and policy. Case law, particularly within the context of the worker’s compensation system is not homogeneous. Nor is it precedent setting. Care must therefore be taken when conducting a case law review so as to be sure a balanced view is taken. To do so requires a broad view of a number of decisions and may include decisions beyond those submitted by the parties. WSIAT decisions are public documents easily accessed by either of the workplace parties. As both parties chose to base their arguments at least in part on WSIAT decisions it is acceptable in my view to conduct a wider review of the pertinent case law as part of my adjudication of this issue.
WSIAT 238 10
I have reviewed WSIAT 238 10, a more recent decision that addresses the fact situation of a letter carrier in the course of his letter carrying duties – walking across an intersection- sustaining calf pain diagnosed as plantaris tendon disruption. The Panel concluded that the letter carrying duties were not comparable to a stroll and can be perceived as an injuring process. Noting the etiology of the condition – that in one document was suggested to be caused by stepping of a curb or forceful pushing off of the foot the Panel concluded the following:
After assessing all of the evidence, the Panel finds that, in the circumstances of this appeal, the forceful walking that is inherent in the job duties of a letter carrier – including climbing steps and carrying a bag of mail - was a significant contributing factor in the tears of the plantaris tendon which the worker experienced. The Panel finds that, in the circumstances of this appeal, the act of walking constituted an external, unintended injuring process and is a chance event that meets the definition of accident within the meaning of the Act.
This decision also closely mirrors the fact situation in the current claim with the added advantage that the diagnosis and the claimed injuring process is similar to the case before me. This Panel in coming to his conclusion relied on the rationale outlined in WSIAT decision 1672 04 which will be discussed in greater detail below.
WSIAT 1672 04
WSIAT decision 1672 04 is a lengthy decision that discusses in some detail the legal definition of accident and the two branches of entitlement stemming from either a chance event or disablement. It also has a fulsome debate on when it might be necessary to evoke the presumption clause. The presumptions clause as articulated in section 3 of the Act simply stated is that in the case of an injury from a specific incident or chance event occurring in the course of employment it will be presumed to be also arising out of the work place activity unless the contrary can be shown. In the case of disablement entitlement that is conditions that arise over time or as an unexpected result of the workplace activities it is necessary to show the injury arose both in the course of, and arising out of the employment. The decision then goes on to state that in practice it may not be necessary either determine the specific branch of entitlement and therefore evoke or not evoke the presumption cause as most cases will turn on compatibility. That is to say is the diagnosed condition compatible with the work place activity. In the opinion of this vice chair the workplace activity can be the injuring process. This is separate from the previous jurisprudence that suggested the injury could be the chance event or as she put it “the injury is the accident”.
Much of the debate about the injury-is-the-accident law at the Tribunal has evolved around the question of whether it was necessary to identify an external injuring process in order for the alleged facts to fall under the “chance event” branch of the definition. However, I do not consider that the crux of the issue. In order to establish entitlement, Tribunal Panels and Vice-Chairs are required to weigh different theories of how the accident occurred. Some theories involve possible mechanisms of accident that, if accepted, would constitute chance events, and some are based on theories of accident that, if accepted, would constitute disablements. Prior to deciding the causation issues, it may be necessary for the Panel or Vice-Chair to decide if the theory being considered involves an alleged chance event or disablement. That may be necessary in order to know if the presumption applies. However, for entitlement, there must be a work related injuring process, and that means, in effect, something external to the injury. Accordingly, it is necessary that the theory of accident identify an alleged external injuring process. In either case, if no possible external injuring process can be identified the result will always be, in my view, that there is no work-related injury, irrespective of the application of the presumption. The task of the Tribunal Vice-Chair or Panel is to weigh the work-related and the non-work-related theories of injury.
Medical Review
At the time of onset the worker was 46 years of age. Medical reporting describes her as being overweight. The initial diagnosis was Achilles tendonitis. An x ray of April 1, 2010 indicates the Achilles tendon was unremarkable, however a small spur was identified at the plantar facial origin. “There is marked beaking and degenerative spurring of the talonacivicular joint. This could be secondary to a fibrous tarsal coalition.”
The Form 8 or doctors first report completed on June 2, 2010 described the accident as occurring in the decontamination unit “ walks back and forth went to move to grab instruments pivoted and felt ++ pain”. The diagnosis at that time remained Achilles tendon. A subsequent Form 8 completed by the specialist Dr. McLeod on June 30th provides the current diagnosis of acute tibralis posterior injury dysfunction. The history of accident provided here was turning at work. The consultation report from Dr. McLeod dated June 25, 2010 discuses the accident history in more detail “she was working back and forth between counter and sink and felt a sudden popping sensation in her ankle”
Dr. McLeod goes on to provide his own comments as to whether WSIB should cover this injury:
…I do not understand all of the machinations but she has been turned down and what was relayed to me was that she was told that this was an injury that could have occurred anywhere and therefore is not work related, Unfortunately , the point is it that it did not occur anywhere, it actually did occur at work. Therefore I believe it is WSIB eligible…
The last report on file is from Dr McLeod and is dated October 20, 2010. It notes that there had been little improvement with casting and orthotics and the worker was now willing to proceed with surgery. Dr. McLeod cautioned that post surgery recovery would be at least 6 months and possibly a year.
There is no further discussion regarding causation in the claim file as the adjudicator concluded the work event itself was not an accident. However the employer representative has provided some medical documentation that does discuss the various methods of causation or the aetiology of the condition.
In the website document “www.medic8.com/health guide/sports medicine/ tibialis-posterior tendonopathy” the condition is primarily linked to overuse of the foot, especially through repetitive outward stretching of the foot and ankle…excessive inward rolling of the foot and ankle can also contribute to the injury.
The website document “emedicine.medscape.com/article 386322” states:
Tibialis posterior tendon disorders are predominately ischemic [a localized blood deficiency]..impingement also plays a role in tibialis posterior tendon dysfunction because the t p t has a focal point of stress as it curves around the medial malleous. This point of stress can be analogous to the pressure on the rotor cuff in the subacronmial space. This combination of ischemia and mechanical compression causes most tibialis posterior tendon disorders’
The same document emedicine.medscape.com/article 386322 states that the signs and symptoms can occur either spontaneously or as a result of trauma and identifies risk factors as hypertension, gout, rheumatoid arthritis and obesity. There is a higher incidence among middle age women 40 to 60 years of age.
ANALYSIS
I find myself in agreement with the reasoning in decision 1672 04. That is for entitlement to flow there must be an injuring process and that injuring process must have an identifiable link to the workplace activities. In examining the accident theory under this specific claim I am unable to conclude that based on the information presented that there is an injuring process. The history of accident that I am accepting is “that the worker while in the course of her employment, moved from one work station to the other to place or retrieve instruments. This activity would necessitate a turn or pivot; however there is no evidence of a discrete slip or twist event.” I do not see an injuring process in this event at least not one that could be classed a chance event. Nor is there any wilful and intentional act not the act of the worker. The worker turned to move from one direction to another. The treating specialist Dr McLeod in arguing for entitlement in this case did not espouse a work connection or dispute the injury could be spontaneous in nature. The Specialist merely felt the fact that the pain occurred while at work should be sufficient for entitlement to flow. This is not a correct interpretation as outlined above.
The facts are that the worker turned and went to move to the left and experienced a spontaneous onset of pain in the ankle area. One of the medical reports submitted by the employer’s representative suggests the condition is largely caused by ischemia with a mechanical aspect. I have interpreted this to be a lack of blood flow to the affected tendon which then becomes compromised due to the lack of blood flow along with repeated compression when the tendon is stretched over the ankle bone. Any foot or ankle movement would result in the tendon moving over the ankle. It has not been shown that this worker’s work caused excessive ankle movement. Therefore the fact that the onset of pain occurred at work due to ankle movement and the tendon simply rupturing or tearing would in my opinion be simply happenstance. That is to say the pain occurred at work but not due to the work performed, similar to Dr. McLeod’s statement that the pain could have occurred anywhere. I am not of the view that the specific act of turning to move to the left constitutes an accident in the sense of a chance event as defined as an identifiable unintended event which causes an injury. However for the reasons outlined below I am not able to be as categorical with regard to the disablement branch of entitlement.
I am intrigued by WSIATdecision 238 10 involving the mail carrier. The injuring process is similar to the current case as it consists of just walking across the street. The actual injury also appears similar involving a tendon in the foot ankle area although not the exact same area of anatomy as in this case, it is reasonably similar. In the WSIAT decision the panel concluded that the act of walking in the context of a letter carrier is something different than a casual stroll. The panel then concluded that “climbing steps and carrying a bag of mail - was a significant contributing factor in the tears of the plantaris tendon which the worker experienced. “ I am not in agreement with the Tribunal’s next finding that this particular injuring process be classified as a chance event as it appears to me to more typical of an injuring occurring over time or as unexpected result of working duties or a disablement.
It could be extrapolated that in the worker’s case before me that her work duties also resulted in an injuring process. To do so one could rely on the causation theory as exposed in decision 238 10 or as submitted in on one of the medical documents submitted by the Employer’s representative,. www.medic8.com/health guide/sports medicine/ tibialis-posterior tendonopathy
It describes how the condition could be caused by excessive rolling of the foot or repetitive stretching of the foot. That is could the condition be related to the work duties over time. The overuse aspect of entitlement has not been explored. Neither party has discussed this aspect of entitlement. If it could be shown that the work activities involved repetitive stretching and perhaps rolling of the foot then entitlement could be considered based on the above causation theory- as being related to the work in general. I am unable to conclude that this is or is not the case as there is no detail on file concerning the general work duties of this worker or the work duties and physical demands or risk factors of a SPD attendant. The worker works in the STD area or sterilizing processing department. The work activity of turning at the work station may very well be a highly repetitive job that she has done constantly over 5 years. If so there may be grounds for repeated rolling of the foot causing micro tears and finally an acute onset. However, there is at this time an insufficient amount of information on file to make such a ruling one way or the other. I am therefore directing the operating area to obtain additional information concerning the nature of the job duties and to revisit the issue of entitlement on the basis of disablement.
CONCLUSION
There is no entitlement in this claim on the basis of a chance event.
The operating area is directed to obtain additional information and revisit the ruling as to whether the entitlement may exist on the basis of a disablement either as a condition that emerges gradually over time or as unexpected result of working duties.
I will remain seized concerning any remaining dispute (if any) subsequent to the further review by the operating area regarding the disablement question.
DATED March 7, 2011
R. P. Horne
Appeals Resolution Officer
Appeals Branch