Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION: 20150023
DECISION DATE: May 12, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Self-Represented
HEARING: Hearing in Writing
HEARD by: B. Craddock, Appeals Resolution Officer
ISSUE(S)
The worker is objecting to the Eligibility Adjudicator (EA) decision of December 3, 2012, which denied initial entitlement for bilateral foot injuries.
BACKGROUND
The worker is a now 68-year-old housekeeping coordinator who sought medical attention for bilateral foot complaints on October 14, 2012. The worker was diagnosed with degenerative changes of the tibialis posterior tendon resulting in posterior tibial tendon dysfunction with concomitant planovalgus deformity of the feet, commonly referred to as flat feet.
The worker did not initially report his foot problem as work related. However on November 19, 2012, the worker reported the bilateral foot problem to his employer and attributed to his job duties on August 2012. The worker indicated that they were short staff and had increased workload at that time.
The EA reviewed entitlement and concluded that no accident had been established. The worker was performing his regular job duties which required prolonged standing and walking. Although there was recognition of changes in staffing in August 2012, the standing and walking component of the worker's job duties had not increased because the job duties essentially required constant standing and walking.
Regardless of whether there was a change in job duties in August 2012, the EA noted that the worker had a prior history of foot complaints and that the diagnosed condition was pre-existing and not the result of any employment activities. Consequently, entitlement to benefits was denied.
Subsequent to the denial of benefits, the Worker Representative requested that entitlement be considered on an aggravation basis. The EA noted that no accident was established and the aggravation basis did not apply.
AUTHORITY REFERENCES
Policy 15-02-01 – Definition of an Accident
Policy 11-01-15 – Aggravation Basis
ANALYSIS
Having reviewed evidence in the file record and the written submissions of both parties, I find that it has not been established that the diagnosed conditions of posterior tibial tendon dysfunction or planovalgus deformity are the result of an accident arising out of and occurring during the course of the employment. I also find there is no entitlement on an aggravation basis.
The definition of accident includes a disablement arising out of and in the course of employment.
The definition of disablement includes:
- a condition that emerges gradually over time.
- an unexpected result of working duties.
In the case of a disablement injury, the onus is on the worker to establish that injury arose out of the employment and not some other cause. It must be established on the balance of probabilities that the employment was a significant contributing factor to the development of the condition.
The worker has been diagnosed with conditions that have no relationship to particular employment activities. The conditions are largely idiopathic, although there are some risk factors that can contribute to tibial tendon dysfunction, such as trauma or surgery, inflammatory diseases, and certain athletic activities.
The worker has described his regular job duties as requiring prolonged weight bearing (standing and walking). He cites this as the cause of his condition. He has not identified any trauma to either foot during the course of his employment. There is no medical evidence to support a causal relationship between the diagnosed conditions and standing or walking on an 8-hour per day basis.
Individuals with the same diagnoses would be expected to experience symptoms while weight bearing. However, for entitlement to be established, it is not sufficient that a worker experiences symptoms in the workplace. There must be something about the work that has contributed to the condition and the workplace contribution must be considered significant.
The Worker Representative has requested entitlement on an aggravation basis, arguing that the job duties aggravated the underlying conditions. In the case of aggravation basis, a disablement injury must still be established. The criterion for acceptance of an accident is not met in the absence of evidence of a significant employment contribution. Additionally, evidence must show that the condition was objectively worsened by the employment activities.
The evidence in this case is merely that the worker experiences symptoms while performing his job duties. The worker is precluded from performing his job duties because of his underlying condition, but the condition was neither caused by those duties nor objectively worsened.
CONCLUSION
On the balance of probabilities, I find that the evidence does not establish that the worker’s bilateral foot condition arose out of an accident occurring during the course of the worker's employment.
I also find there is no entitlement on an aggravation basis, as there is no accident and no evidence that the pre-existing condition was aggravated by any employment activity.
The worker's objections are denied.
DATED May 12, 2015
B Craddock Appeals Resolution Officer Appeals Services