WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20210008
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Self
HEARING: Hearing in Writing
HEARD by: C. da Cunha, Appeals Resolution Officer
DATED: May 1, 2021
ISSUE
The worker objects to the Eligibility Adjudicators’ (EA) October 31, 2019, March 2, 2020 and May 6, 2020 decisions. She seeks:
- Initial entitlement to a longitudinal split tear of the peroneus brevis in the right foot.
BACKGROUND
On August 12, 2019, the worker completed a Worker’s Report of Injury/Disease (Form 6). In this document, she reported that, on August 6, 2019 and August 7, 2019, four of her seven co-workers were absent from work, leaving four people within her position to perform the necessary duties. At approximately 5:00 AM on August 7, 2019, while carrying a 25 pound (lbs.) parcel for a distance of 30 feet, she felt a sudden “pop” and immediate pain on top of her right foot. She was 53 years of age at the time, and had worked with the employer as a Clerk/Sorter for over 19 ½ years.
On the date of injury (DOI), the worker suffered from a tear of the peroneus brevis tendon in the left foot (i.e. the same subject injury in this claim), which has not been accepted as being work-related, and for which she underwent surgery on August 14, 2019. She was wearing an aircast on the left foot on the DOI.
After her August 14, 2019 left foot surgery, a September 17, 2019 ultrasound of the right foot showed mild thickening of the anterior talofibular ligament, in keeping with a prior sprain, mild tendinosis of the peroneus brevis and longus, with a longitudinal tear of the brevis, and mild tendinosis of the posterior tibialis and flexor digitorum longus.
The Accident History and Physical Demands of the Job Duties:
The worker attached a handwritten description of her work environment, on or about the DOI, to her Form 6. She wrote, in part:
After the August long weekend we returned to work to high volumes and short 4 employees. Since this position only staffs 8 people, this is significant.
In an August 12, 2019 Employee’s Report of Incident, the worker wrote, in part:
I am an inside worker. My job is essentially sorting various parcels of various weights and sizes and carrying them to carts for sorting. This job requires a lot of walking and heavy lifting. I have a torn tendon in my left foot which I am having surgically repaired on Wednesday Aug. 14/19. On Wednesday Aug. 7th, while carrying a heavy parcel to a depot card, something in my right foot snapped. It created a discomfort when weight was applied to my foot. I continued working but after going home and sleeping, once I got up, my ankle was swollen & it hurt to put weight on it.
On August 12, 2019, the worker sought medical attention with Dr. S. Kalia. In the clinical notes for that visit, Dr. Kalia wrote, in part:
Re: R ankle - injured last week while at work on 7th.
is going to have surgery on ankle on L side - did pre-op with me on the 7th (ie. this was just after the shift when the injury occurred, as pt works nights).
Pt did mention briefly on day of pre-op that has developed new issue on the R foot, but that would deal with her L foot first.
Reports 30% understaffed in dept (so working harder, faster, more lifting) - on Wednesday - working in depot - felt a pop in foot - lateral ankle behind lat mall - then was immediately painful, and limping.
following day (8th) could barely walk - was unable following 2 days
over the weekend, a bit better - did try to go to work today, but supervisor advised her to go home, to have assessed.
this week feeling a bit better - finds worse after sitting immobile
OE: swelling at R lateral ankle posterior to lat malleolus - tender
reduced ROM
I: R ankle injury while at work - on feet/carrying.
P: complete Form 8
U/S
On October 16, 2019, the worker provided the following statement to a Workplace Safety and Insurance Board (WSIB) officer, in part:
She unloads parcels from trucks. She does about 1000 parcels per shift and they weigh 50+ lbs. That day she was carrying a heavy parcel across the room to place it in the sorting cart and she felt a snap on the top of her right foot and she began limping.
She was carrying a heavy item (weighed about 35 – 40 lbs.) when she felt the pain.
When asked if she was able to identify anything that was different with her work that would have caused her injury (e.g. unexpected or unusual element to the task, heavier than normal, awkward, pace, volume, changes, etc.), the worker reported that there was nothing specific that day.
The EAs’ Decisions:
On October 31, 2019, March 2, 2020 and May 6, 2020, the EAs denied initial entitlement to a longitudinal split tear of the peroneus brevis in the right foot/ankle, finding that the diagnosis was not compatible with the accident history.
The Worker’s Position:
The worker representative argues that initial entitlement is in order because the worker suffered a sudden onset injury while in the course of her employment as a Clerk. She started her work day without any symptoms to her right ankle, but after her injury, she encountered pain and swelling. Diagnostic testing provide evidence of the workplace accident. Furthermore, a WSIB Medical Consultant (MC) opined that the medical diagnosis was compatible with the accident history.
The Employer’s Position:
The employer contends that the medical evidence supports that the worker suffered from the same injury in her left ankle, which is non-compensable. Therefore, there is no reason to believe the same issue in the right ankle would be anything other than non-compensable in nature when there was no mechanism of injury in this claim.
This tendon type issue is also regularly attributed to a degenerative condition brought on by the normal aging process.
Parcel weights and volumes fluctuate at all depots, all the time, and there is always a mixture in the weight of parcels (five to 20 lbs.) and packets (one to five lbs.). This is part of the normal job function of this worker and, at the time of incident, she was carrying only 25 lbs. in a straight line, over a short distance, and time period.
The “pop” or “snap”, in and of itself, is not a work related injury, as walking is a part of normal life function. It must be proven, there was a workplace mechanism of injury.
At her pre-operative August 7, 2019 medical appointment, the worker barely mentioned any concerns with her right ankle, and this was on the day the claimed injury occurred. It cannot clearly be confirmed that tendinosis was not present in her right foot prior to the August 7, 2019 onset of pain. The cause of the “pop” cannot be attributed to walking with a package. Therefore, the decision to deny the claim should be upheld.
AUTHORITY
Section 13 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policies
11-01-01: Adjudicative Process (published November 3, 2008)
15-02-01: Definition of an Accident (October 12, 2004)
For the Record:
Adjudicative Advice Document – Initial Entitlement (Disablement), January 2005
https://www.wsib.ca/sites/default/files/2019-03/advice_initialentitlement.pdf
ANALYSIS
I have carefully considered all of the available information, relevant legislation, appropriate operational policies, and applicable adjudicative advice document in reaching this decision. Having done so, I find that initial entitlement to the longitudinal split tear of the peroneus brevis in the right foot is in order.
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.
The policy adds, in part:
If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.
There is no dispute regarding the worker and employer relationship. The matters to be resolved are whether proof of accident can be established and, if so, if the worker suffered a work-related injury that is compatible with her accident history.
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. A “disablement” is either:
A condition that emerges gradually over time; or,
An unexpected result of working duties.
The worker’s accident history is neither a wilful and intentional act nor a chance event (i.e. an identifiable unintended event causing an injury). The accident history is that of a disablement. Specifically, it is a condition that occurred as an unexpected result of working duties, due to the physical demands of those duties over two days (i.e. significantly increased volume and pace), with a sudden onset of pain on August 7, 2019, when she felt the “pop” in her right foot. Therefore, as this is a disablement type claim, initial entitlement turns on the medical compatibility of the personal work-related injury to the accident history.
Furthermore, as the worker’s claim is a disablement, she does not have the benefit of the presumption under Section 13(2) of the WSIA, which states:
If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.
In other words, because the accident is neither a wilful and intentional act nor a chance event, while it occurred in the course of her employment, it cannot be presumed that it arose out of her employment. Therefore, the onus is on the worker to prove the work-relatedness of the longitudinal split tear of the peroneus brevis in the right foot.
The test for determining causation in WSIB claims is that of a significant or material contribution. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor.
The standard of proof applied is the “balance of probabilities”. A speculative possibility does not meet this standard, which requires a fact or a causal link to be “more probable than not”.
The January 2005 WSIB Adjudicative Document entitled “Initial Entitlement (Disablement)” states, in part:
In order to rule on whether the injury ‘arose out of the work activity’ significant detail around the work performed including the mechanics of how it was performed and the nature of the injury the worker has incurred must be secured. The primary source for this information should be the worker and the treating physician(s).
While the employer argues that the worker only performed her regular duties on August 6, 2019 and August 7, 2019, that parcel weights and volumes fluctuate at all depots, all the time, and that there is always a mixture in the weight of parcels (five to 20 lbs.) and packets (one to five lbs.), they do not address or dispute that a 50% reduction in staff in the worker’s department is a significant change in the work environment and, necessarily, in the pace and volume of work handled by the remaining 50% of workers. In other words, while the volume of work may fluctuate regularly, it is not disputed that those fluctuations would normally be handled by a workforce of eight and not a workforce of four people. Therefore, I accept that, on August 6, 2019 and August 7, 2019, there was a significant increase in the physical demands placed upon the worker by her work duties due to a significant reduction in staff.
Furthermore, the clinical evidence confirms that, on the DOI, the worker was someone with a left foot injury severe enough that she required surgery, and which was scheduled for August 14, 2019, only one week from the DOI. Additionally, the objective investigations on record show that she also suffered from chronic and degenerative conditions in the tendons of her right foot.
The question that remains, therefore, is whether a longitudinal split tear of the peroneus brevis in the right foot is compatible with the accident history (i.e. performing significantly increased physical demands involving the feet for two days) in someone possessing a vulnerable left foot/ankle and a vulnerable right foot. This is a medical question.
As noted above, on August 12, 2019, Dr. Kalia linked the worker’s right ankle injury to her work duties. Specifically, to working harder and faster, and having to perform more lifting due to the workplace being understaffed.
Furthermore, on February 21, 2020, Dr. M. DeRocher, WSIB MC, reviewed the evidence on record, and spoke with Dr. Kalia. After doing so, Dr. DeRocher provided the following medical opinion:
By nature tendinosis describes a chronic and degenerative state of a tendon. Thus, the ultrasound findings of mild tendinosis of the peroneus brevis and longus, posterior tibialis, and flexor digitorum longus tendons cannot be attributed to the acute work related injury.
According to the accepted accident history the worker injured her right ankle after carrying a heavy parcel weighing approximately 25Ibs a distance of approximately 30 feet (the worker notes that on the DOI she had a significant increase in workload due to staffing shortages and increased parcel volumes from the preceding long weekend). As a result of the accident the worker felt a pop in her foot, in the region of the lateral ankle behind the malleolus, with immediate pain resulting in limping. The following day the worker was reportedly unable to walk. Clinical evaluation on August 12, 2019 indicates findings of swelling at the right lateral ankle posterior to the malleolus with reduced range of motion and tenderness. Taking into consideration the degenerative state of the worker's tendon at the time of the accident (underlying tendinosis) it is possible that tearing of the tendon could occur with overload without a specific trauma or twist to the ankle. The description of a popping sensation posterior to the malleolus with immediate pain and difficulty weight bearing is consistent with an acute injury to the peroneus brevis tendon. The clinical findings of swelling posterior to the lateral malleolus, loss of motion and pain to palpation are also consistent with this type of injury. As such, it is my opinion the clinical evidence supports the ultrasound finding of a longitudinal split tear of the brevis is compatible with the work accident under the claim.
There is no contrary medical opinion of equal or greater weight on record. Therefore, I find that the evidence on file confirms medical compatibility.
The facts and circumstances on record lead me to find that the significant change in the physical demands of the worker’s regular duties on August 6, 2019 and August 7, 2019 was, on a balance of probabilities, a significant contributing factor in the development of the longitudinal split tear of the peroneus brevis in the right foot. The worker has discharged the burden of proving the work-relatedness of her injury. Therefore, initial entitlement is in order.
CONCLUSION
I find that that initial entitlement to the longitudinal split tear of the peroneus brevis in the right foot is in order.
The worker’s objection is, therefore, allowed.
DATED May 1, 2021.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division