SUMMARY DECISION NO. 413/98. Fasciitis (plantar); Cashier.

Transcription

1 SUMMARY DECISION NO. 413/98 Fasciitis (plantar); Cashier. A supermarket cashier appealed a decision of the Appeals Officer denying entitlement for plantar fasciitis. The causes of plantar fasciitis are not well understood. There is little support for the theory that walking or standing on hard surfaces is a significant contributor to the development of plantar fasciitis. The worker worked only about 24 hours per week. There were other possible causes such as degenerative changes related to ageing and weight gain. The Panel concluded that, on the balance of probabilities, the worker's plantar fasciitis was not related to work. The appeal was dismissed. [9 pages] DECIDED BY: Alexander DATE: 21/04/98 ACT: WCA TRIBUNAL DECISIONS CONSIDERED: Decision No. 17/88 (1990), 17 W.C.A.T.R. 1 consd; Decisions No. 154/88 consd, 436/88 refd to, 530/88 consd, 231/91 consd, 484/91 consd, 99/92 refd to, 230/92 refd to, 787/93 refd to, 879/95 refd to, 172/96 consd, 724/96 consd, 796/96 consd, 175/97 consd, 58/98 consd

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 413/98 [1] This appeal was heard in Thunder Bay on March 23, 1998, by Tribunal Vice-Chair J.A. Alexander. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Officer A. Forbes, dated September 23, That decision denied the worker entitlement to benefits for her plantar fasciitis which, she claims, developed as a result of her work as a cashier in a grocery store. The worker has also developed a condition in her right knee. The Appeals Officer relied on the opinion of a Board Medical Consultant to reach his decision. The worker is seeking benefits for time lost from July 24, 1995, until November 27, [3] The worker appeared and was represented by Mr. K. Goenneman of the United Food & Commercial Workers International Union. Mr. S. Wallace, from the human resources department of the grocery chain, represented the employer. THE EVIDENCE [4] I considered the material included in the Case Record Addendum #1 and Addendum #2, all prepared by the Tribunal Counsel Office (Exhibits #1 and #2 respectively). Addendum #2 contains contained the package of Board policies that apply to this case. The Case Record contained general information on plantar fasciitis and also a Tribunal discussion paper entitled, Plantar Fasciitis, by Dr. W. Robert Harris, dated July [5] The worker gave evidence. Both representatives made submissions. These submissions included argument about the recognition by the Board, in earlier decisions, of plantar fasciitis as an occupational hazard for grocery cashiers. THE ISSUES [6] The worker is seeking benefits for time lost from work and for medical expenses. The issue before me is whether the worker s plantar fasciitis can be causally related to her activities as a cashier in a grocery store. [7] The worker has also developed problems in the right knee. She relates these to her plantar fasciitis. If I conclude that work made a significant contribution to the worker s plantar fasciitis, I must also consider whether the knee problem might also have been indirectly caused by the worker s job. [8] The Workplace Safety and Insurance Act, 1997 (WSI Act) took effect on January 1, This legislation amends some sections of the Workers Compensation Act, which continues to apply to injuries occurring before January 1, All references to the Act in this decision, unless otherwise indicated, are to the Workers Compensation Act as it read on December 31, 1997.

3 Page: 2 [9] That letter listed the following policy documents: 1. Board Policy Document # , Definition of an Accident ; 2. Board Policy Document # , Accident in the Course of Employment ; 3. Board Policy Document # , Adjudicative Process ; 4. Board Policy Document # , Decision Making ; and 5. Board Policy Document # , Benefit of Doubt. THE REASONS (i) Background [10] In 1986, this worker returned to work as a clerk in the floral department of a supermarket and as a cashier after some years out of the workforce bringing up her children. Her work was part time and consisted of between 20 and 30 hours a week. In 1990, she began to notice pain in her feet, which her doctor diagnosed as plantar fasciitis. By 1995 the condition led the worker to take time off work. She also submitted to arthroscopic surgery on her knee. The worker is now about 50 years of age. She continues to work part time as a cashier. (ii) The worker s evidence [11] The worker described her work at the store. She first noticed pain in her feet, and visited her doctor, in Store management had provided mats for cashiers, but these did not seem to help her feet to any great extent. She also developed osteoarthritis in her right knee, which resulted in surgery in The pain in her feet became so bad, the worker explained, that she took almost five months off from work in [12] The worker s doctors have prescribed physiotherapy, ultrasound treatments, acupuncture, exercise and water aerobics. The worker also embarked on a weight loss program. The worker was also prescribed custom orthotics, but did not find these very helpful. In fact, she believes they exacerbated the pain in her knee. [13] The worker received income maintenance during her lay-off through the company s insurance plan. Since then she has returned to work, where she continues to have flare-ups of pain. She feels, however, that her condition is manageable. (iii) The medical reports [14] There are two general reviews of plantar fasciitis in the Case Record. [15] Dr. Harris, in the report mentioned earlier, describes plantar fasciitis as an inflammation of the plantar fascia, a thick sheet of fibrous tissue just under the skin on the sole of the foot where it attaches to the heel bone. The usual symptoms of the condition are pain under the heel, often worse when the patient first takes weight on the foot in the morning. This pain may diminish (but not necessarily disappear) with walking. Since it is a soft tissue injury, scanning the area is not usually very informative. An examiner will usually find swelling and tenderness under the heel and around the heel bone.

4 Page: 3 [16] Dr. Harris continues that the causes of plantar fasciitis are not well understood. It may occasionally result from trauma. He points out that neither flat feet nor working on hard surfaces is correlated with the problem, that is, most people with flat feet do not have heel pain, and most people with heel pain do not have flat feet. Similarly, it is hard to correlate it with athletic activity. Plantar fasciitis is as common in runners as it is in sedentary people. The condition, he explains, is self-limiting, but notorious for taking a long time to heal. It is seldom a cause of long term disability. A shoe insert, or orthosis, is often prescribed, followed, if that is not successful, by a cortisone injection. Surgery is the treatment of last resort. [17] Dr. Harris includes a final comment: The majority of appeals arise because patients believe their symptoms result from having to stand or walk on hard surfaces at work. They do not recognize that the hard surfaces in their home or the cement sidewalk they walk upon on their way to work is not different than the floor at work. Hearing Officers often deny claims because the WCB medical staff say the symptoms were spontaneous in origin. From the scientific viewpoint, there is no evidence that the nature of the floor being walked on is a factor in causing symptoms. [18] The employer s representative also included several pages taken from the website of Southern California Orthopedic Institute of Van Nuys, California. It lists the following factors which may contribute to the development of plantar fasciitis: 1. flat, pronated feet, 2. high arches, 3. increasing age, 4. sudden weight increase, 5. sudden increase in level of activity, 6. running in sand, and 7. hereditary factors. [19] The report agrees with Dr. Harris s observations that pain usually decreases with walking, that plantar fasciitis is a common foot problem, and that it may take months to clear up. The article states that the condition is common in people who have jobs that require a fair amount of walking or standing, but it does not say that the walking or standing causes the condition. [20] On August 14, 1995, Dr. Hignell first reviewed the file for the Board. He wrote: There is insufficient medical information on file to provide support for the contention that the worker s plantar fasciitis has resulted from work activities. These do not appear to be abnormal activities and is not a commonly recognized affliction associated with working in [supermarkets]. There are many activities outside work that could cause plantar fasciitis. As far as the right knee is concerned there is no entitlement for the knee at this time. [21] The Board s Medical Consultant, Dr. A. Malayil, gives a list of predisposing factors that is roughly consistent with both general reports cited above. She writes that aging, flat pronated feet, a foot with a high, rigid arch, improper shoes, running on soft terrain, and heel or toe running may all contribute to the development of the condition. She concludes that the diagnosis of plantar fasciitis is not compatible with the worker s job as a cashier.

5 Page: 4 [22] The worker saw her own family physicians, Dr. Loewen (now deceased), Dr. G.R. Scaife, and an orthopaedist, Dr. J.S. Porter. The reports in the file all mention the worker s plantar fasciitis, but none makes a direct link between the condition and the worker s job as a cashier. Dr. Scaife referred the worker to Dr. Porter in January 1996, and simply notes that he advised the worker to return to work for half days in November (iv) The worker s representative s submissions [23] Mr. Goenneman submitted that the worker had testified to a condition that she undoubtedly had. The worker had discussed in her evidence other possible causes of her plantar fasciitis. Similarly, the Case Record contains lists of its theoretical causes. Mr. Goenneman submitted that none of these nonwork related causes applied in this worker s case. Referring to the list above, Mr. Goenneman pointed out that the worker was not an athlete, she had not experienced a sudden severe weight gain, she did not apparently have any related physical condition, such as pronated feet, and she had not suffered trauma or disease. She had, inevitably, grown older but that, aside from her work, was the only predisposing factor. By elimination, only her work as a cashier, where she was on her feet all day, was left as a reasonable explanation for the development of her plantar fasciitis. [24] At the very least, Mr. Goenneman submitted, the worker s time off work in 1995 could be viewed as a response to an aggravation of the worker s existing plantar fasciitis. In that case entitlement could be recognized for an aggravation. [25] Mr. Goenneman also referred to several Board decisions that had granted entitlement to compensation for plantar fasciitis. He had submitted copies of these decisions to the Appeals Officer, and they are contained in the Case Record. He concluded from these decisions that it had been Board policy to recognize entitlement for plantar fasciitis when it appeared in grocery cashiers. (v) The employer s representative s submissions [26] Mr. Wallace submitted that the causes of plantar fasciitis are not well understood, but it is believed that there are several predisposing factors. Given all the other possible causes of the worker s condition it is difficult to conclude, on a balance of probabilities, that the worker s part time employment as a cashier made a significant contribution to her disability. Furthermore, the worker s condition did not clear up when she was away from work, suggesting that her work was neither the only, nor even the most important contributor, to her condition. [27] Mr. Wallace responded to Mr. Goenneman s argument that the Board apparently had a policy of allowing these claims. He submitted that Board decisions could not be used as a precedent, and that each case is unique and must be determined on its own merits. His review of these decisions had led him to conclude that they tended to favour the worker s attending practitioner s opinion over that of the Board Medical Consultant. [28] Finally, Mr. Wallace submitted that concluding that the worker had entitlement for an aggravation of a pre-existing condition would be inappropriate. The worker spent an average of 4 hours out of 24 hour day at work, this left plenty of scope for her condition to be aggravated during her personal and leisure time activities. He concluded that the Appeals Officer s decision was correct and should not be overturned.

6 Page: 5 (vi) Board policy and Board and Tribunal decisions [29] Dr. Hignell s remark that plantar fasciitis is not usually associated with working in a supermarket prompted the Appeals Officer to seek further advice. He wrote to the Board Medical Consultant on July 31, 1996, saying that he had been involved in other claims for cashiers where entitlement had been recognized for the condition. He then asked if plantar fasciitis [is] no longer accepted as a condition that would afflict cashiers. Dr. Malayil responded, but did not directly address the question of the general relationship between working as a cashier and developing plantar fasciitis. The answer appears to be that the policy package for this case contains no policies addressing this issue and the condition is not listed in Schedule 3 or 4 to the Act. Plantar fasciitis might or might not afflict cashiers, but each case must be considered on its own merits. [30] The Case Record includes three Board decisions, submitted by the worker s representative, where entitlement for plantar fasciitis was granted. In two of these cases it was granted as an aggravation. I cannot conclude from three cases that the Board routinely grants entitlement for plantar fasciitis which develops in grocery cashiers. [31] Neither representative reviewed Tribunal decisions dealing with plantar fasciitis and its relationship to workplace activities. We discussed at the hearing that they might be as informative as Board decisions for appeals before the Tribunal. [32] Several decisions (Decision Nos. 436/88, 99/92, 230/92, 787/93 and 879/95) considered plantar fasciitis as an aggravation of a pre-existing condition, or as a development after the worker suffered a trauma. They do not appear to be relevant, as the facts are different from this case. The following decisions tend to turn on the individual circumstances in each case. Decision No. 530/88 granted entitlement for plantar fasciitis to an auto worker. In this case there was evidence that the condition improved when the worker was away from the job. The Panel also applied the benefit of the doubt in allowing the appeal. In Decision No. 154/88 the Panel acknowledged that the worker was overweight, but his plantar fasciitis developed during a period of increased production at the factory, and increased activity by the worker. The Panel allowed the appeal. In Decision No. 231/91 the Panel denied the appeal, although it recognized that the worker s job required extensive walking on hard surfaces. [33] Decision No. 484/91 concerned an appeal by the employer of a Board decision granting a roofer entitlement for plantar fasciitis. In that case, the Panel gave little weight to the worker s orthopaedist s opinion, because he seemed to base his conclusion on the general premise that few roofers developed plantar fasciitis. The Panel instead relied on the opinions of the medical assessor and the worker s podiatrist. [34] The five latest decisions of the Tribunal, three released in 1996, one in 1997 and one in 1998, all denied claims that work made a significant contribution to the development of plantar fasciitis. Decision No. 796/96 denied the appeal because, the Panel concluded, plantar fasciitis is a common degenerative problem brought on by aging. Two decisions (Decision Nos. 175/97 and 724/96) relied in part on the finding that worker s problems continued after the worker left the workplace. Decision No. 58/98 denied the appeal because the medical evidence found nothing in the worker s job that might cause her

7 Page: 6 to develop plantar fasciitis, while other medical evidence raised no more than the possibility that a relationship existed between her work and her condition. [35] The decision that is closest to the case before us is the last of these five. Decision No. 172/96 concerns a grocery clerk who spent some of her working time as a cashier and the rest stocking shelves. She was on her feet during her whole working day. The Panel denied that decision in part because the worker s condition deteriorated after she stopped working and because her doctor did not make a causal association between her work and her condition. (vii) Conclusions [36] If work activity was a cause of the worker s condition, she experienced relatively brief exposure, since her work week averaged about 24 hours. The worker believes that standing and walking on hard surfaces at work may have caused her condition. There is nothing in Board policy that accepts this condition as a disablement arising out of employment. I also conclude that the causes of plantar fasciitis are not well understood in the medical community. [37] I conclude from the general reports of Dr. Harris, the California Orthopedic Institute, and from Dr. Mayalil s general comments, that there is little support for the theory that walking or standing on hard surfaces at work is a significant contributor to the development of plantar fasciitis. The medical reports from the worker s doctors also do not make the explicit link between the worker s job and her plantar fasciitis. The worker gave evidence that Dr. Scaife told her to find another job, but it is not clear whether the doctor thought that her job caused the condition, or simply that he thought the continued effect of standing on hard surfaces, after she had developed the condition, was to be avoided. Although the worker gave evidence that Dr. Scaife attributed the plantar fasciitis to the workplace, his written reports are more equivocal. In 1990, Dr. Scaife wrote that the worker should avoid overuse/ loading on R foot/leg. In 1995, he wrote: work requires prolonged standing. Dr. Scaife wrote that the worker could return to work for four-hour shifts and he suggests a break each hour, but nowhere does he proscribe work. [38] Similarly, I see no evidence in the reports that the worker had a condition that was aggravated by work. [39] I conclude from the Board and Tribunal decisions cited above that sometimes panels and Appeals Officers are persuaded by the evidence in a particular case to conclude that workplace activity makes a significant contribution to the development of plantar fasciitis, and sometimes they are not. In this case I cannot conclude that the worker s job was the significant cause of her plantar fasciitis. Although no Board decision denying entitlement was cited by the worker s representative, there are at least some, since nearly all the Tribunal decisions listed above consider appeals of Board decisions that were unfavourable to the worker and denied entitlement for plantar fasciitis. Given that the causes of plantar fasciitis are not well understood, the lack of a pattern in Board and Tribunal decisions is, in my opinion, a reasonable result. [40] Mr. Goenneman submitted a probabilistic argument that we must examine. In essence, he said that there are many possible causes of plantar fasciitis and that we could eliminate most of them as a reasonable cause of this worker s condition. I agree that most of the factors listed above do not apply to this worker. Mr. Goenneman submitted that this process of elimination leaves one candidate,

8 Page: 7 workplace activity, as the most likely cause of the worker s plantar fasciitis and hence we are obliged to accept it. Mr. Goenneman did not provide his estimate of the probability that work caused the worker s plantar fasciitis. [41] The flaw in this argument is that, even if it is the most likely cause, it may not meet the threshold condition of the balance of probabilities standard. In other words, the most likely cause of a condition may have a probability of less than 50%, and hence we cannot accept, on the balance of probabilities, that it is the cause of the condition. [42] This point was cogently made in Decision No. 17/88. In that case, a worker suffered a stroke, and there were a number of theories to explain the causes of the stroke. Several of the possible causes were related to the workplace. The Panel could not accept any one theory on the balance of probabilities. It found, however, that the probability of one or other of the possible causes linked to the workplace occurring was greater than 50%. It then concluded that the sum of the probabilities of the work-related causes was high enough for it to accept that workplace activity, on a balance of probabilities, had led to the stroke. [43] In the case before us, only one work-related cause for the worker s plantar fasciitis has been proposed the requirement that the worker stand and walk on hard floors for an average of four hours a day. There is no firm medical opinion that this was the cause of the worker s condition, and there is scant theoretical support for it in the general literature contained in the Case Record. The worker s representative asserts that it is the most likely cause, but he does not assert that the probability that the worker s job caused the plantar fasciitis is more than 50%. There are other possible non-work related causes; degenerative changes caused by aging and perhaps weight gain. No persuasive argument has been presented that, on a balance of probabilities, this worker s job was a likely cause of her plantar fasciitis. [44] For all these reasons, I conclude that the job as a cashier in a supermarket did not make a significant contribution to the development of this worker s plantar fasciitis. [45] I do not find that the worker s plantar fasciitis developed as a result of her employment. Therefore, I do not have to address the question of whether the osteoarthritis in the worker s knee was aggravated by her plantar fasciitis, which was itself a result of her workplace activities.

9 Page: 8 THE DECISION [46] The appeal is denied. DATED: April 21, 1998 SIGNED: J.A. Alexander