WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1624/14

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1624/14 BEFORE: S. Netten : Vice-Chair E. Tracey : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: August 29, 2014 and October 2, 2014 at Ottawa Oral DATE OF DECISION: October 16, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2231 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated August 2, 2011 APPEARANCES: For the worker: For the employer: Interpreter: P. King, Paralegal E. Persad, Lawyer None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1624/14 REASONS (i) Issue [1] The issue under appeal is initial entitlement for tarsal tunnel syndrome (TTS) of the left foot, claimed as a gradual onset disablement. (ii) Overview [2] In September 2001, the worker, a postal worker, reported a work-related injury of left plantar fasciitis, which he attributed to stepping onto steps and to walking. This claim was denied at the operational level in January 2002 and at the appeals level in July The worker filed a second claim for plantar fasciitis in January 2006, based on a new onset of bilateral symptoms, and this claim was amalgamated into the 2001 claim. [3] In the meantime, initial entitlement for left plantar fasciitis from 2001 had been appealed to the Tribunal. The worker s representative submitted new medical documentation in December 2008 which provided a diagnosis of left TTS. As a result, in March 2009 she withdrew the worker s appeal on entitlement for plantar fasciitis, and sought a ruling from the Board on initial entitlement for left TTS. This was denied at the operational level in October 2009 and at the appeals level in August The worker now appeals this issue to the Tribunal. [4] Through his representative, the worker takes the position that his left TTS, initially reported in September 2001, was caused by a change in delivery route in November 1998, which required him to walk longer distances and carry heavier mail. The employer s representative questions the accuracy of the TTS diagnosis, and argues that the route change was insignificant and not responsible for this condition. (iii) Law and policy [5] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. Section 126 requires the Tribunal to apply Board policy when making its decisions. [6] Initial entitlement to benefits is governed by section 13: 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. [7] An accident is defined in section 2(1) to include disablement arising out of and in the course of employment. Board policy on the definition of an accident (Operational Policy Manual Document No ) states that disablement includes a condition that emerges gradually over time and an unexpected result of working duties. [8] Tribunal jurisprudence applies the test of significant or material contribution to questions of causation. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. [9] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight.

3 Page: 2 Decision No. 1624/14 (iv) Discussion [10] The worker s position is premised upon the following facts, supported by the testimony of the worker and a union official at the hearing of this appeal: The worker became a full-time mail carrier in or around His duties involved sorting mail, preparing relay bags of mail ( tying out ), preparing an initial load of mail ( carry ), and delivering mail. The maximum permissible weight limit for carried mail was and is 35 pounds. Prior to November 1998, the worker s routes included approximately two hours of inside duties and three hours of continuous walking on delivery (as well as travel time and breaks). A, the route performed for two to three years leading up to November 1998, was not a difficult route. The worker estimated that his full bags of mail on that route were 20 to 25 pounds, though he did not generally weigh them. From November 1998 to June 2006 the worker was responsible for route B, which was a heavier route. While formally assessed at 14 minutes longer than a standard route, the worker testified that this route required 3.5 to 4 hours of walking daily. In addition, higher volume of mail meant that the worker s full mail bags were, on average, 30 to 35 pounds. At that time the worker carried a single-sided satchel over his right shoulder, with the satchel resting on his left side at approximately waist height. The worker noted that the bag did not move much when full. Occasionally the worker carried a second single satchel, but in that case would distribute the 35 pounds of mail between the two bags. [11] The worker completed an Employee s Report for the employer on September 25, 2001 which stated August 2001 as the date of accident. An initial physiotherapy form completed by the worker on September 26, 2001 ticked 3-10 weeks to the question How long have you been in pain? The worker testified that the onset of left foot problems began close to the time that he reported the injury. Accordingly, the evidence consistently supports an onset date of July or August This is conceded by the worker s representative. [12] The worker s former family doctor, Dr. D. Raymond-Jones, diagnosed plantar fasciitis in September While there was no mention of plantar fasciitis in chart notes between September 2002 and June 2005, the worker stated that his condition subsided but never really went away. [13] Gait testing in August 2003 at an orthotics centre described a bilaterally pronated foot structure, requiring semi-rigid custom orthotics. [14] The worker s current family doctor, Dr. H. McIsaac, diagnosed plantar fasciitis in June 2005 ( Plantar fasciitis has returned ) and January Orthopedic surgeon Dr. D. Ritter diagnosed eight weeks of classic plantar faschitis [sic] in March In May 2006, Dr. Ritter stated his condition comes, goes, and can repeat itself over years. He wrote, I do not relate plantar fasciitis due to his prolonged walking or specifically his work as a letter carrier, and, the commonest cause I see is simply spontaneous development of this with no apparent antecedent cause.

4 Page: 3 Decision No. 1624/14 [15] The worker s representative requested a consultation from Dr. R. Wong, a specialist in community medicine with the Occupational Health Clinics for Ontario Workers. The worker confirmed in testimony that he saw Dr. Wong on one occasion only, and was not treated by him. Dr. Wong s initial report, dated March 23, 2007, stated: [The worker] noted that at the end of November 1998, he was transferred to a route that was said to be extra long. This route required walking to [sic] between 3 ½ to 4 hours. Usual walking time for the other routes was about 3 hours This volume and weight of mail lifted was therefore much higher. The amount of weight lifted would be around lbs. or more. [The worker] noted that after a few weeks of walking on the new route, he experienced gradual increase of pain in his feet There was indeed an increased amount of work that he was asked to do when he developed his bilateral foot pain. I will report on the results of his tests at a later time [16] Correspondence from the worker s representative dated October 1, 2008 indicates that the above-cited report had been revised to specify the November 1998 date. The original version of the March 2007 report was not in the case materials. [17] Dr. Wong ordered x-rays and blood tests, and provided a Progress Report on August 15, He noted that on examination in March 2007 the worker had slight pronation of his feet, and percussion of the plantar nerve in his left foot was positive. He concluded as follows: This man has tarsal tunnel syndrome. The tarsal tunnel is a fibro-osseous space located posterior to the medial malleolus. Several structures pass through this space including the posterior tibial nerve, the posterior tibial artery and vein, and the tendons of the flexor halluces longus, flexor digitorum longus and posterior tibial muscles. There is entrapment neuropathy of the tibial nerve or one of its branches as it passes through the tarsal tunnel. Causes of tarsal tunnel may be from trauma, both acute and repetitive. Other space occupying lesions may also cause the condition. There is also plantar fasciitis in his right foot. There is no evidence of other causes to explain for his condition at this time. If his foot numbness and tingling sensation persists, an MRI may be ordered. From the various factors that I had mentioned in my previous consultation note, I believe that the repetitive trauma and increased work that he was subjected to has contributed significantly to his feet problems. [18] An MRI of March 18, 2008 found the tarsal tunnel to be grossly unremarkable other than a small pocket of fluid, with no evidence of compression or mass along the nerve. On April 23, 2008, Dr. Wong wrote: The swelling within the tarsal tunnel may be present when he is walking or standing for extensive periods of time. Upon rest, the swelling may dissipate and therefore the compression of the nerve may also dissipate. Therefore the value of an MRI, using static images, provides indication of obstruction from structures such as tumors. It does not provide adequate information during dynamic phases of walking and standing. In any case, the diagnosis of tarsal tunnel condition is from clinical means in terms of percussion of the bottom of the feet at the tarsal nerve. The tingling sensation indicates that there is swelling within the nerve. My opinion remains unchanged in the sense that if there is increased walking activity, there may be increased trauma to the feet resulting in swelling and therefore compression of the tarsal nerve as well as swelling within the plantar fascia structures.

5 Page: 4 Decision No. 1624/14 [19] Even assuming that Dr. Wong s diagnosis is correct, and accepting the background facts as asserted by the worker, the Panel does not find that the increased duties from November 1998 (longer periods walking while carrying heavier mail) made a significant contribution to this injury, for the reasons that follow. [20] The worker relies upon Dr. Wong s opinion. The Tribunal considers a number of factors in determining the weight to be given to medical and other expert evidence (see, for example, Decisions No. 558/02, 1577/97, 1841/00R, 1758/04, 484/88, 2469/06, as well as Bedford v. Canada 1 ). These factors include: Credentials: Does the practitioner have sufficient qualifications and expertise in the subject matter of the report? Quality: Is the report detailed and thorough? Are its findings and conclusions well-explained? Does it contain unsupported assertions? Knowledge of the facts: Is the opinion based upon incomplete, exaggerated or erroneous facts? When comparing opinions, are they based on the same understanding of the facts? Responsiveness: Has the practitioner addressed the questions asked? Does the report directly address the issue at hand? Was there an updated opinion in the face of new facts? Objective evidence: Does the report include objective, clinical medical evidence, or only subjective reports? Opportunity to observe: Has the practitioner conducted a direct examination of the worker? For how long has he or she had opportunity to observe the worker? Contemporaneity: How close in time with the events in question is the report? Consistency: Is the report internally consistent? Is it consistent with other evidence from the same practitioner? Is there harmony of medical opinions? Neutrality: What was the purpose of the report? Has advocacy for the patient or for the topic been demonstrated? [21] The Panel places little weight upon Dr. Wong s opinion. We note first that Dr. Wong is an expert in community medicine and not a neurologist or nerve specialist. He saw the worker on one occasion only, more than six years after the injury onset. He did not requisition electrodiagnostic and/or nerve conduction studies 2, but sent the worker for an MRI only to dismiss the value of an MRI in this particular case. More significant, however, are our concerns about the basis for Dr. Wong s opinion. Dr. Wong wrote that the worker had developed symptoms within weeks of walking the new route: he was under the misapprehension that there was a close temporal relationship between the change in duties and onset of symptoms. His opinion is therefore based upon erroneous facts. Although he was given the November 1998 date after the fact and his initial report was amended in this respect (apparently in or around ONSC 4264 (varied 2012 ONCA 186, 2013 SCC 72) 2 This is described as essential to confirm a diagnosis of TTS, in literature provided by the worker s representative: DeLisa, J.A., & Saeed, M.A. Tarsal Tunnel Syndrome. Muscle & Nerve, Nov/Dec 1983, p. 684; Kuper, B.C. Tarsal Tunnel Syndrome. Orthopaedic Nursing, Nov/Dec 1998, p. 12

6 Page: 5 Decision No. 1624/14 October 2008), he did not revise his commentary with respect to the coincident timing of symptom onset, nor did he directly address the significance of the delayed onset. Furthermore, Dr. Wong s assertions are unsupported and his conclusions not well-explained. He did not explain what type or amount of walking would or would not cause swelling and compression of the tarsal nerve, and what the difference might be physiologically between 3 hours of daily walking and 3.5 to 4 hours of daily walking. The Panel was particularly concerned that Dr. Wong provided no source from the medical literature for his statements that the causes of TTS include repetitive trauma and that increased walking may constitute such trauma. The literature submitted by the worker s representative does not corroborate these statements. [22] In the Panel s view, the medical literature relied upon by the worker s representative does not support any causal link between the increased work duties and TTS: The authors of The Tarsal Tunnel Syndrome 3 list possible etiologic factors as space-occupying lesions, tenosynovitis, chronic thrombophlebitis, chronic foot strain, abnormal calcaneal eversion, systemic disease, hypertrophy of certain muscles, rapid weight gain, connective tissue changes associated with aging, fluid retention, arthritic bony spurring, constant squatting, and trauma such as ankle sprains. Additional factors mentioned by the author of Tarsal Tunnel Syndrome 4 include tarsal nerve injury by stretching, referencing hyperlaxity of the joints, excessive pronation, and overuse injury in runners, race walkers and aerobic dancers. The Panel does not consider susceptibility in race walkers to apply to mail carriers, given the differences between the sport and technique of race walking, and the slower-paced, regular walking involved in mail delivery. While there have been two references to some degree of pronation of the worker s foot in the file documentation, there has been no confirmation of excessive pronation; in any case the literature does not suggest that daily walking, even in the presence of pronation, causes TTS. The authors of Tarsal Tunnel Syndrome: A Review of the Literature 5 note that the specific cause of TTS can be identified in 60% to 80% of patients, and categorize the causes broadly as trauma, space-occupying lesions, and foot deformities. Examples of trauma include displaced fractures, traumatic flexor tenosynovitis and posttraumatic epineural scarring; repetitive activity or walking is not mentioned. An article titled Backpacking-Induced Paresthesias 6 evaluated the presence of foot numbness and paresthesias among long-distance backpackers, hiking at least 7 consecutive days on the Appalachian Trail. It noted as background that overpronation and excessive training among runners were common etiological factors for TTS. The worker s situation is not analogous to long-distance hiking, nor was he a runner. In any case, the article did not reach a conclusion with respect 3 DeLisa, J.A., & Saeed, M.A. Tarsal Tunnel Syndrome. Muscle & Nerve, Nov/Dec 1983, p Kuper, B.C. Tarsal Tunnel Syndrome. Orthopaedic Nursing, Nov/Dec 1998, p. 9 5 Lau, J.T.C., & Daniels, T.R. Tarsal Tunnel Syndrome: A Review of the Literature. Foot & Ankle International, : Boulware, D.R. Backpacking-Induced Paresthesias. Wilderness and Environmental Medicine, :161.

7 Page: 6 Decision No. 1624/14 to TTS specifically; paresthesias was a common complaint, but was limited to the duration of the hike. A more recent article titled Tarsal Tunnel Syndrome 7 outlines causes including space-occupying lesions, fracture of the calcaneus, neurilemmomas and neurofibromas, direct trauma, inflammatory conditions, and traction neuritis with arch lowering or collapse. The first and last articles discussed above note, separately from their discussion of etiology which made no mention of walking, that the symptoms of TTS may be accentuated by prolonged standing or walking. This does not suggest or support a causal link between walking and TTS. In her final submissions, the worker s representative submitted that the increased weight of mail carried by the worker on the B route was equivalent to a rapid weight gain. Rapid weight gain is a causal factor mentioned in the literature. However, the Panel finds no basis to equate the carrying of an additional 10 pounds of mail intermittently (with the mail bag repeatedly emptying from full weight of 35 pounds to nil throughout the 3.5 to 4 hours of walking) with a rapid weight gain, in terms of physiological effect. We find this argument to be highly speculative. [23] The worker s representative pointed to one Tribunal decision, Decision No. 198/96, in which initial entitlement for TTS was allowed. In that case, the worker had an associated, compensable stress fracture, and her treating specialist asserted a link between the two conditions and increased standing and walking at work. The facts are therefore substantially different from the case at hand. While the Tribunal has also allowed entitlement for TTS following trauma (Decision No. 1720/00), TTS in and of itself has been found by the Tribunal to be unrelated to work duties such as prolonged standing (Decisions No. 117/03, 2433/06). [24] The three other decisions provided by the worker s representative address entitlement for plantar fasciitis, and are not factually relevant to the appeal at hand. In discussing the principles of causation, Decision No. 1508/04 reasserts that the high scientific and medical standards of scientific precision and virtual certainty are not required by law. The Panel in that decision notes that an inference of work-relatedness may be drawn even in the absence of a definite medical conclusion, and describes causation as a question of fact best answered by ordinary common sense and a robust and pragmatic approach to the evidence. This Panel agrees with those principles. [25] In this appeal, as outlined above, Dr. Wong s opinion is not persuasive, in the absence of supporting evidence, in establishing a link between the increased walking duties and TTS. Extensive walking and/or an increase in carried weight are not identified as causal or contributing factors to the development of TTS in the medical literature. That literature suggests that the specific cause of TTS is unknown in 20% to 40% of patients, thus implying that idiopathic or spontaneous onset is plausible if not common. Significantly, there is no reasonable temporal connection between the worker s left foot condition and the additional walking and/or heavier mail being carried: approximately 20 months passed between the increase in the worker s duties in November 1998 and the onset of symptoms in July or August There are no other facts from which an inference of work-relatedness may reasonably be drawn. In these 7 Gould, J.S. Tarsal Tunnel Syndrome. Foot and Ankle Clinics, : 275

8 Page: 7 Decision No. 1624/14 circumstances, the Panel finds on a balance of probabilities that the worker s mail carrier duties did not constitute a significant contributing factor in the onset of left TTS. [26] We conclude, therefore, that the worker did not sustain left TTS by disablement arising out of and in the course of his employment. He does not have initial entitlement for left tarsal tunnel syndrome.

9 Page: 8 Decision No. 1624/14 DISPOSITION [27] The appeal is denied. DATED: October 16, 2014 SIGNED: S. Netten, E. Tracey, C. Salama

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1718/12

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1718/12 BEFORE: J. Frenschkowski : Vice-Chair E. Tracey : Member Representative of Employers J. A. Crocker : Member Representative of Workers