APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240042
OBJECTING PARTY: Worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: Employer
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: C. Reid, appeals resolution officer
ISSUE
The worker objects to the decision dated May 19, 2021, which denied entitlement to left foot and ankle injuries.
Preliminary Issue
At the beginning of their decision dated May 19, 2021, the eligibility adjudicator did not indicate which conditions were being denied, simply that they were not allowing entitlement for the "left foot and left ankle injuries". Further in the body of the letter, they made note of the worker's report that they were diagnosed with Achilles tendinitis/plantar fasciitis. In their rationale, the case manager explained why plantar fasciitis was denied but they did not provide any explanation for the denial of Achilles tendinitis.
In their reconsideration dated January 12, 2024, the eligibility adjudicator noted the diagnostic findings provided "new diagnoses" of mild osteoarthritis, mid and lateral left Achilles tendinosis and retrocalcaneal bursitis. The eligibility adjudicator provided a rationale for the denial of the osteoarthritis, tendinosis, and bursitis, without providing a new appeals paragraph further to the review of the conditions.
Based on the wording and information contained in the original letter and the reconsideration letter, I find my jurisdiction includes a review of all conditions noted, i.e., Achilles tendinitis or tendinosis, plantar fasciitis, mild osteoarthritis, and retrocalcaneal bursitis.
BACKGROUND
On April 26, 2021, the worker was working a voluntary overtime shift at the Mass Immunization Clinic when they felt a gradual onset of left foot pain. The worker reported this as an injury to their employer on April 30, 2021, attributing their pain to walking on concrete for 11 hours in safety boots. The worker felt that working 4 similar shifts over 6 days caused their foot injuries.
The worker was scheduled for another voluntary overtime shift on April 29, 2021, but they did not come in for that shift. Their next regular scheduled shift was April 30, 2021. The worker attended work but left partway through their shift. The worker lost time from April 30, 2021, to June 5, 2021, and they were paid by full advances from the employer for this period.
The worker initially sought medical attention on May 11, 2021, and Dr. Balouchi queried if the worker was suffering from Achilles tendinitis. The worker started physiotherapy on May 12, 2021, and the physiotherapist queried a possible stress fracture or Achilles tendon tear. The worker underwent diagnostic imaging on May 18, 2021, which revealed mild osteoarthritis, and tendinosis of the mid and lateral Achilles tendon with retrocalcaneal bursitis. I found no evidence that a definitive diagnosis was provided following the completion of the X-ray or ultrasound.
In their letter dated May 19, 2021, the eligibility adjudicator noted they were denying entitlement in this claim as the information did not support that the "left foot and left ankle injuries" arose out of and in the course of employment.
AUTHORITY
Operational Policy Manual
Published
15-02-01 Definition of an Accident October 12, 2004
11-01-01 Adjudicative Process November 3, 2008
REFERENCE MATERIALS
Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions 2994/00, 1930/17, 1428/09, and 634/22 were provided by the worker representative.
"Achilles Tendinopathy: Some Aspects of Basic Science and Clinical Management" by Dr. Kader, Dr. Saxena, Dr. Movin, and Dr. Maffulli:
WSIAT medical discussion paper titled Shoulder Injury and Disability prepared by Dr. Terry Axelrod and Dr. Daniel Axelrod, revised date January 2000
ANALYSIS
I have carefully considered all the available information, legislation, and relevant operational policies in reaching this decision. I find the worker has initial entitlement for the injury to their left Achilles tendon, however, I remit back to the operating area to determine entitlement to loss of earnings (LOE) benefits, subject to the usual rights of appeal.
Employer Position
In their letter dated April 12, 2024, the employer submitted that the medical on file supports that the onset of pain that the worker experienced was not caused by walking during the overtime shifts within a span of a week but rather all of the diagnoses on file refer to degenerative conditions which develop over time and are caused by several pre-existing factors. They submit that no "accident" situation occurred; walking is not considered an "accident" but rather an act of daily living. In addition, they find there is no compatible diagnosis for the history given. They argued there is no proof of accident and no compatibility of diagnosis to the accident or disablement history. In their mind, the claim does not meet the entitlement criteria for an allowable claim.
Worker Position
In their submission dated December 19, 2023, the worker representative found the worker's new and additional duties at the vaccination clinics resulted in a workplace injury, namely Achilles tendinitis. They noted that the vaccination clinic work was performed over and above their regular firefighting duties and a significant deviation from the duties and workstation setup of their regular employment. They argued the worker developed Achilles tendinopathy after working these new duties.
The worker representative noted that policy 15-02-01 Definition of an Accident explains that entitlement for a disablement type injury can be allowed when there is some change in production or set up of work, or the performance of a repetitive duty over time. They argued that a change in work duties and station set-up was present in this case. The representative acknowledged that firefighters' duties include lifting, carrying, dragging, pulling heavy equipment, climbing ladders, working in small bursts of very intense activity, wearing heavy personal protective equipment (PPE), conducting public relations work with the community and paperwork. City X firefighters work a 24-hour shifts. Although there is no set time for breaks and meals, as firefighters are expected to respond to emergencies at any time, work duties are generally spread out throughout the shift and PPE is not worn continuously. PPE is donned and doffed throughout the shift depending on the call attended or activities at the fire station. Footwear might be changed throughout the shift and during most shifts a firefighter is sitting down for extended periods. Firefighters have different sets of footwear. Structural firefighting boots (which include a steel toe and midsole) are worn on most emergency calls. Steel-toed safety boots (which include a steel toe and midsole) are worn on some emergency calls and are part of the standard uniform when at work in the fire station, however, they are not required when working in an office or exercising in the station gym and are donned and doffed throughout the shift when switching into structural firefighting PPE. Safety boots were required for work in vaccine clinics.
Firefighters are not normally on their feet for extended periods, although this might be the case at some emergency calls or training activities. Most emergency incidents lasting more than two hours require a rehab sector to be established so that firefighters may rotate through to rest and recover. Training activities also require rehab opportunities and rest, and breaks are standardized. At an emergency scene, crews must rotate through the rehab sector after going through two bottles of air (typically less than 1.5 hours of work). Rehab at an emergency call often involves sitting down and doffing equipment. They provided a document titled Rehabilitation at City X Fire Services as proof of this. Emergency scene officers are also encouraged to request a relief crew when waiting for other agencies or keyholders to attend an emergency scene, such as at an emergency medical call or faulty alarm call.
While the worker representative acknowledged that the worker's normal work duties can be very physically demanding, they do not usually involve prolonged standing on concrete. The worker would not be accustomed to being on their feet for long periods; they would not normally be standing for more than two hours on concrete at any one time.
At the time of their injury, the worker worked at Fire Station AAA. Station AAA runs an average of 3-7 emergency calls per 24-hour shift. Most calls are resolved quickly, in less than an hour. Travel time to and from calls takes place in the fire truck and firefighters are seated during this time. Seating is also available at the fire station. Fire Station AAA flooring is a mix of concrete, ceramic tile, and linoleum. The work at mass vaccination clinics undertaken by firefighters was a dramatic change from the standard work of frontline firefighters in City X. Firefighting work in City X is unpredictable. At a fire hall, there are a few emergency calls interspersed throughout the shift, a few hours of training that may or may not be physical, and a significant amount of time spent seated. The majority of the time, a firefighter would not be standing up.
The representative argued that continuous walking for 12 hours on concrete in a boot with a steel toe and midsole is not a standard duty regularly performed by firefighters. Like many workers during the COVID-19 pandemic, the worker's work duties and setup changed. It is our position that work that can be periodically very physically demanding (firefighting) is not comparable with work that is repetitive and unrelenting, like walking for 11-12 hours on concrete flooring in safety boots.
Concerning the diagnosis of Achilles tendinitis and tendinopathy, the representative indicated these conditions were noted by the family doctor and the physiotherapist indicated there was acute inflammation in the Achilles tendon. They found it relevant that the physiotherapist did not provide a diagnosis of plantar fasciitis but rather addressed the substantial swelling and reduced range of motion of the ankle in their treatment plan.
The representative referred to the American Academy of Orthopaedic Surgeons document on Achilles Tendinosis. They specifically highlighted that tendinitis, tendinosis and tendinopathy are all common terms which essentially refer to the same problem. They also highlighted that Achilles tendinitis is typically not related to a specific injury but rather from repetitive stress to the tendon, which often happens when an individual pushes their body to do too much, too quickly. Finally, they highlighted that one of the other factors that can make a person more likely to develop Achilles tendinitis is a sudden increase in the amount or intensity of exercise activity (i.e., increasing a running distance every day by a few miles without giving the body a chance to adjust, which may cause irritation and inflammation). They submitted the full copy of this document to the case file.
The representative pointed out that the worker had no functional impairments in their left ankle before this injury. As the disablement occurred at the height of the COVID-19 pandemic, the worker was not partaking in any recreational sports or activities outside of work. Before the pandemic, the worker played recreational baseball.
It is their position that the ultrasound results confirmed inflammation and a tendon strain following the work performed at the vaccination clinic. The worker had no functional impairment before working in the vaccination clinic, which involved a significant change in duties. The evidence supports that immediately following a change in work duties, and an intensive week of working at the vaccine clinic, the worker experienced a disablement that was confirmed by the medical. The representative found that the work duties were a significant contributing factor in the onset of the injury.
The representative cited several Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions in support of their argument that the diagnosis of Achilles tendinitis was compatible with the work duties.
Assessment of the Evidence
The chart notes dated May 11, 2021, noted that Dr. Balouchi did not physically examine the worker's left ankle but queried a diagnosis of Achilles tendinitis based on the worker's description of swelling and redness around the left Achilles tendon and pain with flexing their foot, difficulty walking or putting pressure on their left foot.
The Health Professional's Report (Form 8) dated May 12, 2021, completed by the City Y Physiotherapy and Sports Injuries Clinic noted a diagnosis of Achilles tendinitis/plantar fasciitis. The same clinic completed the Musculoskeletal Program of Care (MSKPOC) Initial Assessment report on May 15, 2021, and noted the area of injury as the left Achilles tendon/heel. They observed swelling and decreased range of motion in the ankle. They queried a possible stress fracture or tear of the Achilles tendon. Of interest, there was no further mention of plantar fasciitis. This diagnosis was no longer being considered long before the entitlement review was completed.
The worker underwent an X-ray and ultrasound of the left ankle on May 18, 2021, which revealed mild osteoarthritis, mild tendinosis in the mid and distal Achilles tendon and mild retrocalcaneal bursitis.
I note that the chart notes of June 7, 2021, do not provide an actual diagnosis from Dr. Balouchi, they simply transcribed that the imaging revealed Achilles tendinitis, mild osteoarthritis of the ankle and bursitis of the Achilles. Dr. Balouchi did not indicate which of these conditions or combination of conditions were responsible for the worker's presentation. Of interest, I noted that Dr. Balouchi believed a change in footwear should address the left foot issues. They also recommended the worker be assessed by a podiatrist assessment if their issues were not resolved with a change of footwear. The worker was cleared to return to work. I also noted the worker did not need to see Dr. Balouchi for this issue again following their appointment on June 7, 2021, which in my mind supports that any persistent issues were resolved with a change in footwear and resumption of their regular firefighting duties.
There is scant medical information in the case record, and what is available does not contain a definitive diagnosis post-diagnostic imaging. However, I find the sentence from Dr. Balouchi's chart notes dated May 26, 2021, to be the closest thing to a definitive diagnosis noted in this case. Dr. Balouchi documented the worker's report that their physiotherapist indicated that recovery from their tendinosis would take 6-8 weeks. I find the most appropriate diagnosis to consider in this case is Achilles tendinosis. This is the only diagnosis that was indicated after the diagnostic testing was completed.
While I acknowledge that the diagnostic testing revealed mild osteoarthritis and retrocalcaneal bursitis, there is no evidence that these conditions represent anything more than incidental findings that have had no impact on this claim. Had these conditions been of any significance, I believe they would have been noted more prominently in the chart notes than a mere transcription of the diagnostic findings. While the worker clearly has these conditions, there is no medical evidence that leads me to believe they were the cause of the worker's disablement.
I am of the same mind for the "diagnosis" of plantar fasciitis. The physiotherapist made mention of plantar fasciitis in the Form 8 completed on May 12, 2021, however, by the time they completed the MSKPOC form three days later on May 15, 2021, they no longer indicated plantar fasciitis as a compensable diagnosis. There is no indication as to why this diagnosis was dropped, but the fact remains, there is no further mention of this condition in the medical records in the case record.
As there was no definitive diagnosis of osteoarthritis, retrocalcaneal bursitis or plantar fasciitis, I find there is no entitlement for these conditions. All that remains for consideration is the diagnosis of mid and lateral Achilles tendinosis.
According to policy 11-01-01 Adjudicative Process, 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. Nor does there seem to be a dispute on whether there was proof of an accident. When adjudicating whether proof of accident is present, the WSIB decision-makers look for the "four immediates" (i.e., immediate pain, immediate reporting, immediate medical attention, and immediate work disruption). In this case, the worker felt immediate pain while still performing the work at the vaccination clinic. They reported having pain within days of onset and an immediate work disruption as they missed their overtime shift at the vaccination clinic on April 29, 2021, and had to leave early on April 30, 2021, as they were unable to complete their firefighter duties that day. The worker reported to the eligibility adjudicator that they called their family doctor on May 3, 2021, but they were unable to get an appointment until the following week, on May 11, 2021. While I would not consider a delay of nearly three weeks to get medical attention "immediate", I do not find this represents a significant delay for the purpose of establishing proof of accident noting that the other immediates were met.
What remains to be resolved is whether there was a personal work-related injury by accident and, if so, if the injury to the left ankle is compatible with the accident history.
In an email dated September 6, 2023, the worker explained to their union representative that they were on their feet for approx. 12 straight hours. They were working on concrete floors with no padding while assisting patients and taking charge of a crew. The worker noted they needed to be available, even while on break. They were wearing safety boots with steel shank and toe and there was no give or comfort in the footwear. The Mass Immunization Clinic (MIC) Instruction Sheet General Instructions included in the case record confirmed the worker was expected to wear safety shoes for the entirety of their shift.
The worker claimed they suffered an injury further to prolonged standing and walking in their safety boots on concrete floors for (4) 11-hour shifts in one week. This was correctly identified by the worker representative as a disablement-type injury as per policy 15-02-01. In order to determine that the worker suffered a personal work-related injury, the evidence must show the personal injury not only happened at work but also happened because of the work.
The worker representative provided a synopsis of the nature and requirements of the worker's regular job duties. In their summation, the representative explained while the worker's regular job duties are often strenuous, require the use of safety boots and require walking on all manner of surfaces, they do not do so for any prolonged periods without rest or change in work duties. The representative provided a document that supported that rehabilitation stations are set up, at fires that were expected to last more than 2 hours or longer and at fires that were expected to last more than 30 minutes in certain weather conditions. This supports that the worker was unaccustomed to standing and walking for more than two hours straight.
I agree with the worker representative that the work at the vaccine clinic was a significant change in the physical demands on the worker's lower extremities/feet when compared to their regular work duties as a firefighter. I find this significant change in work duties to be such that it would represent an injuring process arising out of the work duties that could result in a personal work-related injury.
As the first four criteria are met, the sole issue remaining is whether prolonged, meaning 11 hours per shift and 4 shifts in a week, of standing and walking in safety boots on concrete floors, when unaccustomed to such demands, would be compatible with the diagnosis of Achilles tendinosis.
Given the description of the alternate duties performed while working at the vaccination clinic, I agree with the worker's representative that the nature of the constant walking on concrete floors in safety boots with nonflexible shanks, performed over the course of (4) 11-hour shifts exceeded what one would consider the normal daily activity of walking. I also agree that the alternate duties performed in the vaccination clinic were significantly different than the duties performed as a firefighter. The stress on the worker's feet was increased three times what the worker is normally exposed to during a firefighting situation. The evidence provided by the representative supports that the worker would have been required to rest after two hours while fighting a fire. There is no indication that the worker was offered any sort of regular rest periods while at the vaccination clinic. I find the alternate work duties at the vaccination clinic likely contributed to the left ankle condition.
As stated above, there is scant medical evidence in this case. What evidence there is leads me to believe the family doctor and the physiotherapist supported that the prolonged walking on concrete in safety boots was causally linked to the development of an injury to the left Achilles tendon.
I reviewed the worker representative submission of the article on Achilles tendon injuries as well as the WSIAT decisions in support of the worker's position. I must state that legal precedent does not bind me. While I note WSIAT decisions can provide helpful analysis, which may influence how an appeal is decided; WSIAT decisions do not set precedents, nor do they directly impact the decision-making process. I will rely on the available and contemporaneous information present in the index claim in my rationale.
Noting the lack of medical evidence, I was also interested in the medical research that was considered by WSIAT in their decision-making process. In several decisions, I noted the WSIAT panels referred to the following document:
"Achilles Tendinopathy: Some Aspects of Basic Science and Clinical Management" by Drs. D. Kader, A. Saxena, T. Movin, and N. Maffulli, indicates in part:
Achilles tendinopathy is prevalent and potentially incapacitating in athletes involved in running sports. It is a degenerative, not an inflammatory, condition. Most patients respond to conservative measures if the condition is recognized early. …
Excessive repetitive overload of the Achilles tendon is regarded as the main pathological stimulus that leads to tendinopathy (…).
Achilles tendinopathy is not always associated with excessive physical activity and in a series of 58 Achilles tendinopathy patients, 31% did not participate in sports or vigorous physical activity (…)
The causes of Achilles tendinopathy remain unclear. Various theories link tendinopathies to overuse stresses, poor vascularity, lack of flexibility, genetic makeup, sex, and endocrine or metabolic factors.
Excessive loading of the tendon during vigorous training activities is regarded as the main pathological stimulus. The Achilles tendon may respond to repetitive overload beyond physiological threshold by either inflammation of its sheath or degeneration of its body, or by a combination of the two. Damage to the tendon can occur even if it is stressed within its physiological limits when the frequent cumulative microtrauma applied does not leave enough time for repair. (…)
I accepted the above noted except when considering the causality of Achilles tendon injuries.
A case memo dated January 11, 2024, noted the worker's denial of any unusual movements nor any specific incidents, slips, trips, or stumbles that precipitated the onset of pain. Therefore, the sole consideration for compatibility is the prolonged walking and standing in safety boots.
There are no medical inquiries as to whether the worker had intrinsic risk factors for the development of an Achilles tendinopathy. The worker denied having any relevant prior ankle injuries and the representative confirmed the worker was not participating in any other activities outside of work due to the pandemic restrictions.
The medical paper suggested that excessive repeat overloading of the Achilles tendon is the main pathological stimulus that leads to tendinopathy. In this case, the worker went from standing/walking up to 2 hours at a fire scene to standing/walking up to 11 hours at the vaccine clinic.
I find on the balance of probabilities that the excessive prolonged walking, in an individual unaccustomed to such demands, represented a repetitive overload of the Achilles tendon beyond the worker's physiological threshold resulting in the inflammation and swelling noted in the physiotherapist's reports. There is no evidence to refute the acceptance of work duties as a causal factor. I accept the work duties performed at that vaccination clinic were a significant contributing factor to the development of the left ankle injury. I find that the fifth criterion for entitlement has been met.
As all criteria for initial entitlement set out in policy 11-01-01, I find the worker is entitled to benefits for a left ankle Achilles tendon injury.
The representative referred to the American Academy of Orthopaedic Surgeons document on Achilles Tenonitis. They specifically highlighted that tendinitis, tendinosis and tendinopathy are all common terms which essentially refer to the same problem. I noted that WSIAT does not have a medical discussion paper for the ankle, but I referred to their paper on shoulders which echoes this statement.
The authors of the medical discussion paper on shoulders explained that the term tendinopathy refers to any pathology within the structure of the tendon. This may be inflammation without a tear, a partial thickness tear or a complete full-thickness tear. Tendinitis and tendinosis are interchangeable terms.
While the discussion paper is on shoulders and not ankles, I find it relevant that the statements noted in the document provided by the worker representative have been made in a medical discussion paper accepted by WSIAT for use in the decision-making process.
For these reasons, I accept that entitlement should be extended for Achilles tendinosis as seen on the diagnostic imaging and supported by the health care providers.
Benefits flowing
As the claim was originally denied, I find the evidence insufficient to determine if the worker is entitled to loss of earnings (LOE) benefits from April 30, 2021, to June 5, 2021. I remit back to the operating area to gather the necessary information to determine if the worker was medically authorized off work and/or if there were any modified duties offered, then rule on LOE benefit entitlement, subject to the usual rights of appeal.
CONCLUSION
The worker's objection is allowed in part.
DATED May 24, 2024.
C. Reid Appeals Resolution Officer Appeals Services Division