Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20180044
Objecting Party: Worker
Represented by: Self
Respondent: Employer
Represented by: Self
Hearing: Hearing in Writing
Heard by: C. da Cunha, Appeals Resolution Officer
Date: August 2, 2018
Issue
The worker objects to the eligibility adjudicator’s (EA) decision of November 23, 2016 and seeks initial entitlement to bilateral foot and knee injuries, and health care and loss of earnings (LOE) benefits.
Background
On October 17, 2016, the worker completed and submitted a Worker’s Report of Injury/Disease (Form 6) to the Workplace Safety and Insurance Board (WSIB). She reported that, on August 15, 2016, she tripped over uneven pavement on a sidewalk and stumbled, injuring both feet and knees. She was 39 years of age and had worked with the employer as a letter carrier for almost three months at the time.
The EA originally allowed the claim for bilateral foot and knee sprains on October 20, 2016, finding that proof of accident and medical compatibility between the injuries and the accident was evident.
On November 23, 2016, the EA spoke with the worker’s supervisor and reconsidered his original decision.
The EA’s Decision
After obtaining a statement from the supervisor, the EA denied initial entitlement, concluding that proof of accident could not be established because the worker delayed in reporting the accident to her employer and in seeking medical attention and continued to perform her regular duties, without complaint, until September 26, 2016.
The Worker’s Position
The worker argues that initial entitlement is in order because she:
- Reported the accident and injuries to her employer on August 17, 2016;
- Self-medicated the injuries with ice at night, hoping that they would resolve on their own;
- The foot pain was initially worse than the knee pain, so that is what she focused on and reported;
- Did not complain regularly because she was new to the job and did not want to look bad in the eyes of her employer;
- Suffered no intervening event after August 15, 2016 to account for bilateral foot and knee conditions; and,
- Did work overtime between August 15, 2016 and September 26, 2016, but this was mandatory and not voluntary.
The Employer’s Position
The employer contends that initial entitlement should remain denied for the following reasons:
- The employer offered the worker modified duties on August 17, 2016, which she declined and continued to perform her regular duties, without complaint or medical treatment; and,
- The worker was not diagnosed with bilateral foot and knee sprains until September 26, 2016, almost seven weeks after the accident.
Authority
Operational Policies:
11-01-01: Adjudicative Process
15-02-01: Definition of an Accident
18-03-02: Payment and Reviewing LOE Benefits (Prior to Final Review)
Analysis
I have carefully considered all of the available information, the relevant legislation and operational policies in reaching this decision. Having done so, I find that initial entitlement to a minor right foot soft tissue injury (STI) is in order. The worker reached maximum medical recovery (MMR) for this injury, with no permanent impairment (PI) evident, on October 4, 2016. Entitlement to right foot plantar fasciitis, a left foot injury, bilateral knee injuries, a right shoulder injury, a wrist injury and LOE benefits is denied.
Operational policy 15-02-01, Definition of an Accident, categorizes three different types of accidents, including:
- A wilful and intentional act, not being the act of the worker;
- A chance event occasioned by a physical or natural cause; and
- A disablement arising out of and in the course of employment.
A “chance event” is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event. This is the type of accident claimed by the worker (i.e. a trip and stumble causing injury).
According to operational policy 11-01-01, Adjudicative Process, WSIB decision-makers use the “five point check system” when ruling on entitlement to benefits. An allowable claim must have the following five points:
- An employer;
- A worker;
- A personal work-related injury;
- Proof of accident; and,
- Compatibility of diagnosis to accident or disablement history.
There is no dispute regarding the worker and employer relationship. The matters to be resolved are whether:
- Proof of accident can be established;
- The worker suffered a personal work-related injury; and, if so, whether
- The work-related injury is compatible with the accident history.
In order to determine whether there is proof of accident, a WSIB decision-maker looks for the “four immediates”, which are immediate pain, immediate reporting, immediate medical attention and immediate layoff. In relation to “immediate layoff”, this can be from work altogether or from the regular duties (i.e. performing alternate, suitable work instead of the regular duties).
Immediate pain is a subjective measurement and the worker has confirmed that she did feel immediate pain. This is not in dispute.
The worker delayed in reporting the accident to her employer and in seeking medical attention for two days until August 17, 2016, when she also refused her employer’s offer of modified duties and chose to continue with her regular duties. This is also not in dispute. However, these delays are not unreasonable and the worker has provided a straightforward and easily-relatable explanation as to why she delayed in reporting and in seeking medical attention and refused the offer of modified duties; she was new to the job, did not want to stir things up and thought she would self-treat, hoping that things would resolve themselves over time. I accept this explanation as extremely reasonable and find that proof of accident is evident.
She sought initial medical attention with Dr. M.F. Poonah on August 17, 2016. His note confirms the accident history of August 15, 2016 as well as the presence of a right foot injury. No diagnosis is provided but right foot pain is documented. Therefore, I am satisfied that the worker suffered a work-related personal injury to her right foot on August 15, 2016. The mechanics of the accident history (i.e. a trip over uneven pavement and a stumble) are compatible with a minor STI of the right foot.
After this visit, the worker continued with her regular duties until September 16, 2016, when she stopped working and returned to Dr. Poonah. In his clinical notes of the same date, Dr. Poonah confirms that the worker reported that “now” her other foot and knees had started to hurt. She described the bilateral knee pain as originating and radiating up from her feet. Dr. Poonah diagnosed bilateral plantar fasciitis.
However, a bilateral foot ultrasound completed on September 28, 2016, confirmed that the worker did not suffer from plantar fasciitis in either foot.
Furthermore, the onset of left foot trouble almost seven weeks after the original accident, as reported by the worker to Dr. Poonah, is not compatible with the mechanics of the same accident. Therefore, entitlement to a left foot injury is denied.
With respect to the knees, an ultrasound of both knees undertaken concurrently with the bilateral foot ultrasound confirmed the presence of bilateral medial collateral ligament (MCL) sprains. Again, the onset of bilateral MCL sprains almost seven weeks after the original accident, is not compatible with the mechanics of the same accident. Such STI’s to the knees and left foot would have been readily apparent to the worker at the time of the accident. The objective evidence on record shows that they were not. Therefore, entitlement to bilateral knee injuries, like a left foot injury, is not in order.
The medical record shows that, as of October 4, 2016, the worker’s right foot complaints ceased and started to focus solely on her knees, right shoulder (i.e. as of November 3, 2016) and wrist (i.e. as of December 1, 2016). The onset of right shoulder and wrist pain almost three and four months after the original accident makes any injuries to these areas of the body also incompatible with the original accident and entitlement to them is not in order.
Furthermore, in the absence of any further right foot complaints as of October 4, 2016, I find that the worker reached MMR for her minor right foot STI, with no PI evident, as of that date. Therefore, there is no entitlement to any benefits as of that date.
In relation to LOE benefits from September 26, 2016 to October 4, 2016, operational policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), prescribes that a worker who has a loss of earnings as a result of a work-related injury/disease is entitled to payment of LOE benefits.
The worker acknowledges that she was aware of the availability of suitable work with the employer as of August 17, 2016. There are no objective clinical findings on record to support that, as a result of her minor right foot STI, the worker was totally disabled and incapable of performing suitable, modified work from September 26, 2016 to October 4, 2016. Therefore, her wage loss during this period was not caused by her minor right foot STI and entitlement to LOE benefits for this period is denied.
Conclusion
I find that initial entitlement to a minor right foot soft tissue injury is allowed. The worker reached maximum medical recovery for the injury on October 4, 2016, with no permanent impairment evident.
There is no entitlement to:
- A left foot injury;
- Bilateral knee injuries;
- A right shoulder injury;
- A wrist injury; and,
- Loss of earnings benefits from September 26 2017 to October 4, 2016.
The worker’s objection is, therefore, allowed in part.
DATED: August 2, 2018.
C. da Cunha
Appeals Resolution Officer
Appeals Services