WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180055
OBJECTING PARTY: Worker
REPRESENTED by: Worker Rep
RESPONDENT: Employer
REPRESENTED by: Employer Rep
HEARING: Oral Hearing on August 29, 2018
HEARD by: Kelly Gordon, Appeals Resolution Officer
DATE: September 6, 2018
ISSUES
The worker, through his representative is objecting to the following decisions made by the Case Manager (CM):
The October 13, 2017 decision that denied the restriction of no work involving prolonged or repetitive force with the right foot
The October 13, 2017 decision that determined the fork lift operator job was suitable
The September 11, 2017 decision that denied Loss of Earning (LOE) benefits as of August 23, 2017
The October 16, 2017 decision that denied ongoing entitlement to Work Transition Services (WTS)
BACKGROUND
On September 3, 2015, the worker was lifting a heavy metal part from a rack when the part fell on the worker’s right foot. The claim was originally allowed for a right foot contusion. Entitlement was later extended to include a right foot sprain and abrasion. Following an assessment at the WSIB Foot and Ankle Clinic, entitlement was also extended to include right foot Morton’s Neuroma. The diagnoses of Morton’s Neuroma; however, was reconsidered by the surgeon at the Foot and Ankle Clinic based on the findings of a repeated right foot MRI. At the August 5, 2016 follow up visit, the surgeon changed the diagnoses from right foot Morton’s Neuroma to right foot inter-metatarsal bursitis between the third and fourth metatarsal heads, and minor fibrosis between the second and third metatarsal heads.
In the decision dated September 2, 2016, the CM accepted entitlement to right foot inter-metatarsal bursitis between the third and fourth metatarsal heads, and minor fibrosis between the second and third metatarsal heads.
On March 7, 2017, the worker underwent a Functional Abilities Evaluation (FAE), and permanent right foot restrictions were identified. A WSIB Return to Work Specialist (RTWS) attended a worksite meeting on April 12, 2017. During the meeting, it was determined the essential duties of the worker’s pre-injury job exceeded the worker’s functional abilities as identified on the FAE. As such, the worker required a permanent modified job.
A permanent impairment for the worker’s right foot was identified, and on July 27, 2017 the worker was rated with a one (1) percent Non-Economic Loss (NEL) award for the diagnosed inter-metatarsal bursitis between the 3rd and 4th metatarsals, and minor fibrosis between 2nd and 3rd metatarsals.
On August 4, 2017, the employer confirmed the worker was a successful bidder on a forklift operator job. The claim was referred to a Work Transition Specialist (WTS), who attended a worksite visit and reviewed the fork lift operator job. The WTS determined the physical demands involved in the fork lift operator job were within the worker’s functional abilities. The employer also accommodated the worker’s non-compensable restriction that required the worker to remain on afternoon shift only.
The worker began performing the fork lift operator job on August 14, 2017. On August 18, 2017, the worker contacted the CM, and advised that his right foot had been painful since starting the fork lift operator job. The worker then provided the employer with a medical note indicating the worker is unable to perform work requiring prolonged or repetitve force with the right foot. On August 23, 2017, the employer sent the worker home as they were not able to accommodate this new restriction.
In the decision dated September 11, 2017, the CM denied entitlement to LOE benfits as of August 23, 2017. The CM determined the worker was not entitled to LOE benefits as the permanent modified job of fork lift operator was suitable and within the worker’s physical abilities.
The worker underwent an independent medical evaluation (IME) on September 21, 2017. Based on the results, the worker’s right foot precautions included no prolonged standing, and walking was limited to a sedentary nature.
In the decision dated October 13, 2017, the CM did not allow the medical note indicating the worker’s additional precaution of no work requiring prolonged or repetitive force with the right foot. The CM denied the precaution as it was not identified in either the FAE or IME. In the same decision, the CM states the WTS completed a secondary review of the fork lift operator job based on the results of the IME. The WTS confirmed the forklift operator job continues to be suitable and within the worker’s precautions. For these reasons, the CM confirmed the denial of LOE benefits as of August 23, 2017.
On October 16, 2017, the WTS closed the work transition services as the worker advised he would not be returning to the suitable permanent modified job of Fork lift operator.
The worker representative submitted the Appeal Readiness Form (ARF) dated November 25, 2017. The representative confirmed their objection to the denial of LOE benefits as of August 23, 2017, the determination that the fork lift operator job was suitable, the exclusion of the restriction for no prolonged and repetitive force with the right foot, and the closure of WT services.
AUTHORITY
Operational Policies:
19-03-03 Determining Suitable Occupation
18-03-02 Payment and Reviewing LOE Benefits (Prior to the Final Review)
19-02-01 Work Reintegration Principles, Concepts and Definitions
ANALYSIS
For the reasons that follow, I find the worker does have the restriction of no prolonged or repetitve force with the right foot. I find the modified job of fork lift operator was not suitable, and the worker is entitled to LOE benefits as of August 23, 2017. The worker is also entitled to further WTS. In arriving at this decision, I have carefully considered the information in the claim file, the worker’s testimony, as well as the appropriate Operational Policies.
During the worker representative’s opening statement, the representative argued the board failed to take a holistic approach to the worker’s injury, and did not take into account all of the worker’s right foot limitations. Specifically, the worker representative argues the worker’s precaution of no prolonged or repetitive force with the right foot should have been included in the worker’s limitations. The representative also argues the worker’s alternate job of fork lift operator was not suitable, and as a result the worker should be entitled to LOE benefits from August 23, 2017. The representative is also requesting further WTS.
During the employer representative’s opening statement, the representative argued the evidence on file supports the decisions made by the Operating Area were correctly determined. As such, the representative requests the decisions made by the Operating Area be upheld.
1) Should the precaution of “no work requiring prolonged or repetitive force with the right foot” be included when determining the worker’s functional abilities?
Having considered all of the evidence, I find the worker’s work-related limitations include the precaution of no work requiring prolonged or repetitive force with the right foot. As such, this limitation should be included when determining the suitability of the suitable occupation (SO).
As per Policy 19-03-03, a SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible restores the worker’s pre-injury earnings. The SO must be available with the injury employer or in the labour market. In this case, after a suitable SO was identified, the worker’s doctor added an additional restriction of “no prolonged or repetitive force with the right foot”. The issue before me is whether this restriction should be included in the worker’s functional abilities when determining a suitable SO.
Based on the medical evidence on file, I note the worker was assessed at the Altum Health Foot and Ankle Specialty Clinic (FASC) on November 13, 2015. At the time of assessment, the worker’s main complaint was pain directly over the second and third metatarsal distally. The range of motion (ROM) findings were normal for both the left and right foot and ankle. There was some reduced sensation on the second toe, and no hypersensitivity was noted. An MRI of the right foot was recommended to assess the area between the second and third metatarsal heads. It was recommended the worker continue with physiotherapy, and the worker was to follow up after the MRI. The diagnosis provided was right forefoot crush injury.
The worker followed up at the FASC on December 11, 2015. Based on the MRI results, the worker was diagnosed with Morton’s Neuroma between the second and third metatarsal heads. Intermetatarsal bursa was also found between the second and third, and third and fourth metatarsal heads. The neuroma was reported to be approximately five by five millimeters in size. The worker was observed to walk without a gait aid and demonstrated a slow, flat footed gait pattern on the right side. No effusion or discolouration was reported to be present. Physical examination revealed tenderness between the second and third metatarsal heads. Some tenderness was also reported between the first and second, and third and fourth metatarsal heads, but the majority of pain was between the second and third metatarsal heads. The worker was reported to have full ROM on the right and left foot and ankle. Strength testing was also reported as normal. Neurological examination supported decreased sensation at the web space between the second and third toes. The diagnosis provided is a crush right foot injury with Morton’s Neuroma between the right second and third metatarsal heads. The worker was to continue with modified sedentary duties until he received and trialled the recommended orthotics.
The worker followed up at the FASC on January 15, 2016, and at this visit the worker was casted for custom orthotics to go into his work shoes.
The March 11, 2016 FASC follow up report is on file, and confirms the worker reported constant sharp shooting pain in the right foot. The right foot and ankle ROM was normal and neurological examination of the lower extremities was normal for sensation to light touch. In the doctor’s summary, the doctor states the worker has numbness between all toes on his right foot, and tenderness between the right second and third metatarsal heads. The worker has pain with lateral compression of his right forefoot. The pain is always centred between the second and third metatarsal heads, and does not radiate into the second or third toes. There was no click reported with lateral compression of the right forefoot. The diagnosis is right second and third intermetatarsal Morton’s Neuroma and intermetatarsal bursitis. The worker’s functional abilities were reported at a sedentary level.
The worker underwent a repeat MRI of the right foot on July 15, 2016. The results were reviewed at the FASC on August 5, 2016. The results supported intermetatarsal bursa between the third and fourth metatarsal, and some areas of fibrosis between the second and third metatarsal heads. There was no evidence of Morton’s Neuroma present in the worker’s right forefoot. The worker reported no change in his symptoms from the previous assessment and continued to report pain between the second and third metatarsal of the right foot. The worker also reported numbness and tingling at the dorsum of the foot along the metatarsal heads and over the third digit. The worker reported the pain was aggravated by walking and weight-bearing. Although the worker stated the orthotics were helpful, the worker reported pain with prolonged walking. Palpatory examination supported tenderness on palpation between the metarsal heads of metatarsals two and three. Some slight tenderness on palpation between the metatarsals of three and four was also noted. ROM findings were reported as decreased ROM in dorsi flexion and plantar flexion. Strength was also reduced in plantar flexion, inversion and eversion. The diagnosis provided was right foot intermetataral bursitis between the third and fourth metatarsal heads and a minor amount of fibrosis between the second and third metatarsal heads. A referral to a Specialty Consultation Pain Clinic was recommended, and the worker was to continue with seated sedentary modified duties.
The worker was assessed at the Foot and Ankle Pain Management Program on October 6, 2016. The assessment report is on file and states the following:
“He presents with predominantly somatic pain in the extensor compartment of the right foot mostly at the 3rd extensor tendon. This comes with a component of tenodesis as exhibited by the limited driving excursion of the tendon on passive flexion of the toes. This is likely secondary to the trauma to the extensor mechanism as a result of the work-related injury.”
The worker followed up at the pain clinic on December 16, 2016. The follow up report states that although the worker’s prior right foot MRI’s are contradictory, both MRI’s show some fibrosis between the second and third digits of the right foot. Clinically, when that area was palpated between the metatarsal heads, it was noted to be exclusively tender and affected the movement of the toes due to the pain. The worker was offered a pain block to assist with the right foot pain that was noted to increase on weight bearing. Although the worker was initially in agreement with the pain block, the worker advised that he did not wish to proceed with the procedure.
The worker followed up at the Pain clinic again on January 18, 2017. Based on the information provided in the report, the worker was considered to have reached maximum medication therapy. The worker was referred back to the FASC for a final assessment.
The worker followed up at the FASC on January 27, 2017. The worker reported fairly constant dull pain at the dorsal aspect of the right foot, mainly around the area of the second and third metatarsal. This report again supports the worker was observed to ambulate with an extremely slow gait pattern using a single point cane on the left side. Increased weight bearing on the left lower extremity was also noted. When standing, the second and third toes tended to hyperextend. Although the worker was able to get his toes close to the floor, his toes were not able to touch the floor. ROM findings were reduced for plantar flexion. Nothing further was recommended for the worker to assist with his symptoms. A referral for a Functional Capacity Evaluation (FCE) was recommended to outline permanent work abilities and restrictions. A recommendation was made for the worker to continue with seated sedentary duties until the worker underwent the FCE. The worker was considered to have reached maximum medical recovery and full recovery was not expected.
The worker underwent a FCE on March 7, 2017. It should be noted here that the FCE was not a job specific FCE but instead a general FCE. As confirmed in the FCE report, although the worker demonstrated consistency of performance, the worker reported pain with all functional tasks involving the right dorsal forefoot. As indicated in the report, the worker abilities, strengths and limitations are as follows:
Abilities and Strengths
Able to lift 20 pounds from waist to floor, and waist to crown on an occasional basis
Able to perform elevated work, standing work, forward bending/stranding, and kneel-half kneel on an occasional basis
Able to perform sitting on a frequent basis
Limitations
Significantly limited walking ability, the worker uses a one point cane
As a result of the worker’s limited walking ability, the worker is not able to do frequent or occasional carrying
Unable to perform lifting on a frequent basis due to limited standing
Stairs, walking, and crouching are limited to a rare basis.
The FCE physical examination summary states the following:
“the worker was observed to ambulate with an antalgic gait with a cane. The worker has a forward head posture, rounded shoulders, and pronated feet. He was putting most of his weight on his left leg in standing. Transfers were slow and guarded. Pain behaviours were noted to include grimacing and sighing and overall slow functional movement patterns. There was tenderness on palpation of the right dorsal forefoot. Right ankle range of motion was equal to the left with the exception of plantarflexion which was restricted to 30 degrees. There was dorsal foot pain with right ankle plantarflexion, inversion and eversion. There was dorsal foot pain with all right ankle resisted movements.”
A permanent impairment was accepted for the diagnosed right foot inter-metatarsal bursitis between the third and fourth metatarsals and minor fibrosis between second and third metatarsals. As a result, the worker was granted a one (1) percent NEL benefit. The NEL rating was based on the ROM findings provided in the January 27, 2017 FASC report which confirmed right ankle plantar flexion of 35 degrees, dorsi flexion of 15 degrees, and inversion and eversion at 10 degrees.
The worker then submitted a medical note from Dr. Tam dated August 23, 2017. The note indicates the worker has the added restriction of no work requiring prolonged or repetitive application of force with the right foot.
It should be noted here that the worker started performing the fork lift operator job on August 14, 2017. On August 18, 2017, the worker contacted the CM and reported increased pain in his right foot.
The worker’s family doctor, Dr. Fong submitted a medical note dated September 17, 2017. This note states the worker is unable to carry on the fork lift operator job as the frequent paddling of the fork lift aggravates the worker’s right foot.
Dr. Fong sent in an additional medical report dated September 30, 2017. This report is based on the worker’s presentation on September 9, 2017, and states the worker has been experiencing increased pain in the right foot after performing the fork lift operator job. The report states tenderness was elicited when putting pressure on the dorsal surface of right foot, especially at the web area between the second and third metatarsal heads. The worker complained of increase pain in this area. No swelling or redness in the area was noted and flexion and extension ROM was noted to be normal. No new injuries were reported and the worker was prescribed Tylenol #2 for pain.
At the request of the employer, the worker then underwent an Independent Medical Examination (IME) on September 21, 2017. This examination indicates a diagnosis of Morton’s Neuroma as the cause of the worker’s forefoot pain. The report states the worker would be able to manage light or modified duties preferably of a sedentary nature.
In memorandum AO150, and in the decision letter dated October 13, 2017, the CM accepted the right foot limitations as provided in the FCE and IME reports on file. As these reports did not include the restriction of no work requiring prolonged or repetitive application of force with the right foot, this restriction was not accepted to be a result of the work-related right foot injury.
Based on my assessment of the medical evidence noted above, I am persuaded to accept the restriction of no prolonged or repetitive application of force with the right foot as a work-related restriction. I find this restriction should be included in the worker’s functional abilities when determining a suitable SO. In making this determination I have placed significant weight on the area of injury accepted in this claim, the FCE, and the worker’s right foot ROM.
As previously stated, a permanent impairment has been accepted for right foot intermetataral bursitis between the third and fourth metatarsal heads, and a minor amount of fibrosis between the second and third metatarsal heads. Noting the accepted area of injury, I find that it is more probable than not that the restriction of no prolonged or repetitive application of force with the right foot is a result of the work-related injury.
The medical evidence on file also supports the worker’s symptoms have consistently been in the right dorsal forefoot. As noted in the FCE, the worker requires a single point cane as the worker demonstrated an inability to fully put pressure on the right foot. An antalgic gait pattern was also described with decreased stance time on the right foot. As a result of these symptoms, permanent restrictions have been accepted for weight bearing activities such as, standing and walking. While I note the FCE and IME do not specifically include a restriction for prolonged or repetitive application of force on the right foot, it appears from the medical evidence that the restrictions accepted have been provided as a result of the worker not being able to put pressure on this foot. As the worker is not able to fully put pressure on the foot, I find prolonged or repetitive application of force on the foot would also be a reasonable restriction.
I have also taken into consideration the NEL assessment. While I note the NEL rating of one (1) percent is low, the NEL rating is based on the worker’s reduced ROM for right foot inversion (30 degrees) and eversion (10 degrees). As the decreased ROM was accepted in the rating of the NEL, I also accept the decreased ROM would affect the worker’s ability to apply prolonged or repetitive force on the right foot.
For the reasons stated above, I find the worker does have the restriction of no prolonged or repetitive application of force with the right foot.
2) Is the fork lift operator job a suitable permanently accommodated job?
As I find the worker does have the restriction of no prolonged or repetitive application of force with the right foot, I find the fork lift operator job is not suitable. In making this determination, I refer to Policy 19-02-01 which states a job is considered consistent with the worker’s functional abilities when the tasks and/or duties associated with the job can be performed within the reported physical/cognitive capabilities of the worker.
Policy 19-02-01 also defines suitable work as post-injury work (including the worker’s pre-injury job) that is safe, productive, and consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
Based on the information on file, the worker’s right foot limitations prevented a return to the worker’s pre-injury duties. As such, the worker requires alternate permanent accommodated work. On August 4, 2017, the employer advised the worker was the successful bidder on a forklift operator job.
During the worker’s testimony, the worker stated he attended fork lift training in August 2016. The worker first attended classroom instruction, then four (4) hours training on the forklift. The worker was given two hours to practice driving the fork lift and was then tested. Although the worker did not pass the first time, the worker did eventually pass and received his fork lift operator licence.
The worker testified that he drove the fork lift for one (1) week prior to going off of work due to an increase in right foot pain. As per the WTS decision dated October 16, 2017, the worker performed the forklift operator job from August 15, 2017 to August 23, 2017.
In the worker’s description of the fork lift operator job, the worker stated he was constantly required to use his right foot. The worker testified that he would drive the forklift onto the docks; he would use the forks of the forklift to pick up automobile doors, and then drive the doors to a designated area not far from the docks. The worker stated that he would drive the forklift back and forth from the docks picking up the automotive doors all shift. The worker testified that his right foot was either on the gas pedal driving the forklift or it was on the brake when he was stopped. In order to move the forks of the fork lift, a safety device on the fork lift requires that the brake pedal be depressed. The worker testified that he would depress the brake pedal with his right foot.
The worker testified that the gas and brake pedals on the forklift are very stiff and require force to depress the pedal. Force is also required when depressing the brake pedal in order to move the forks of the forklift.
The worker testified that he is able to drive his automatic car, but that he does not drive it all day as was required of the forklift. The worker stated he would normally drive his car 30 kilometres each way to work. The worker testified that he does not do much driving. The worker also testified that more force was required to depress the pedals on the forklift then is required of his car.
Having reviewed the information on file, I note the Physical Demands Task Analysis (PDTA) for the dock 13 and 14 Lift Truck (fork lift operator job) was received to file on August 16, 2017. Based on the information provided in the PDTA, right leg and foot plantar flexion is required to depress the accelerator and brake pedals. The PDTA states that 10 to 20 pounds of push force is required to depress the accelerator and brake pedal. Walking and standing on cement flooring is required to perform other job tasks, such as preparing the dock or adjusting the forks if needed.
Based on the worker’s testimony, and the job description as provided in the PDTA, I find the fork lift operator job requires prolonged and repetitive application of force on the right foot. In making this
determination I place significant weight on the PDTA which confirms the job involves a force of 10 to 20 pounds to depress the lift pedals. The PDTA also confirms the job involves constant back and forth driving from the docks for the full shift.
I have also taken into consideration the worker’s description which confirms the right foot is not only required to press the gas and brake when moving and stopping the vehicle, but the brake has to also be depressed while moving the forks of the forklift. For these reasons, I find the fork lift operator job was not suitable as the physical demands involved in the job exceed the worker’s functional abilities.
3) Is the worker entitled to LOE benefits as of August 23, 2017?
I find the worker does have entitlement to LOE benefits as of August 23, 2017.
Policy 18-03-02 states that if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the work reintegration process.
As per memorandum 127 dated August 18, 2017, the worker contacted the WTS and advised that he was having increasing right foot pain since he returned to the forklift operator job. The worker advised that his family doctor was away until September 9, 2017, but that he has an appointment on August 23, 2017 with a covering physician.
The worker did seek medical attention, and as stated above, the medical note indicates the worker has an additional work restriction of no prolonged or repetitive applied force of the right foot.
The worker testified that he was sent home from work on August 23, 2017, as the employer advised that they could not accommodate the new restriction of no prolonged or repetitive applied force of the right foot. The worker testified that he has been in receipt of disability benefits since. The worker also testified he continues to follow up with his doctor, and he has continued to keep in touch with the employer’s disability contact person. The worker has not been offered any other modified job since leaving work in August 2017.
The worker testified that he has continued to look for postings of positions with the employer, and stated he was the one who first identified and applied for the fork lift operator job. When the worker saw the fork lift operator job was a sit down job, the worker thought it was suitable. It wasn’t until the worker started the job and began using the pedals that he found it to be difficult.
As stated above, the restriction of no prolonged or repetitive applied force of the right foot has been accepted, and as a result, I find the fork lift operator job is unsuitable. Based on my review of the information on file, I do not see evidence of any other modified job offered to the worker. As the modified job offered to the worker has been deemed unsuitable, I find the worker is entitled to LOE benefits as of August 23, 2017. As indicated in the information on file, this is the date the worker went off of work. The duration of LOE benefits will be left to the Operating area to determine.
4) Is the worker entitled to WTS?
As noted above, I find the fork lift operator job is unsuitable. As such, I find the worker is entitled to WT services.
As per Policy 19-03-03, when the workplace parties have been unsuccessful in arranging a return to suitable and available work with the injury employer, the WSIB provides a work transition (WT) assessment to determine what specialized assistance a worker requires to enable a return to work with the injury employer or, if necessary, in a suitable occupation (SO) that is available in the labour market. Following the assessment, the WSIB, in collaboration with the workplace parties (worker and employer), union representatives and other authorized representatives, determines a SO for the worker.
The worker testified that he has not returned to work since August 23, 2017, and he has been receiving disability benefits. The worker stated that since he went off of work, he has not been offered any further modified duties within his restrictions.
The worker remains off of work, and is considered fit to perform suitable work. As the forklift job is not suitable, I find the worker is entitled to further WTS.
In summary, I accept that the restriction of no prolonged or repetitive applied force with the right foot is accepted as a work-related restriction. I also find the fork lift operator job to be unsuitable, and the worker is entitled to LOE benefits as of August 23, 2017. I find the worker is also entitled to WTS.
CONCLUSION
I conclude:
The worker’s restriction of no work involving prolonged or repetitive force with the right foot is a work-related restriction
The fork lift operator job is not suitable
The worker is entitled to LOE benefits as of August 23, 2017
The worker is entitled to WTS
The worker’s objection is allowed.
DATED September 6, 2018
Kelly Gordon
Appeals Resolution Officer
Appeals Services