Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Gordon Murphy Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Workplace Health, Safety and Compensation Review Division office in Mount Pearl, NL on May 14, The worker was present at the hearing and was represented by his spouse. 2. The employer was represented by Mary Dworak who participated by teleconference. 3. The Commission did not attend or participate in the hearing process. Introduction 4. On August 26, 2013 the worker submitted a Form 6, Worker s Report of Accident reporting injuries that had occurred over time to his right and left ankles, which he attributed to his employment as a Store Associate. Medical treatment was sought on August 8, On August 29, 2013 a medical report diagnosed the worker with plantar fasciitis and tendonitis and prescribed orthotic aids as a means of treatment. 6. On September 11, 2013 the worker completed a non-specific incident report by telephone with the Intake Adjudicator. 7. On September 13, 2013 the employer submitted to the Commission a Worksite Assessment/Physical Demands Analysis for the worker s position. 8. On October 25, 2013 the Commission s Occupational Therapy Consultant reviewed the file. 9. On October 30, 2013 the worker s Podiatrist submitted correspondence confirming that the worker has been receiving ongoing foot care for psoriasis since January On November 8, 2013 the Intake Adjudicator denied the worker s claim. The worker appealed to the Internal Review Division. 1

2 11. On January 20, 2014 the Internal Review Specialist upheld the denial of the worker s claim. The worker appealed to the Review Division. Issue 12. The worker seeks a review of the Internal Review Specialist s decision dated January 29, 2014 and requests I find that the Commission erred in finding that his ankle and foot symptoms did not arise out of or in the course of his employment. Outcome 13. It is my finding that the Commission erred in its decision of January 29, 2014 in finding that the worker s ankle and foot symptoms did not arise out of and in the course of his employment. The Commission s decision is overturned and the worker s claim for compensation is allowed. Legislation and Policy 14. The jurisdiction of the Review Commissioner is outlined in the Workplace, Health, Safety and Compensation Act ( the Act ), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer s assessment; the assignment of an employer to a particular class or group; an employer s merit or demerit rating; and the obligations of an employer and a worker under Part IV. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and 2

3 proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) notify the person seeking the review and the commission of the time and place set for the review; and (b) review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1)Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2)Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) make a decision which is in accordance with this Act, regulations and policy; or 3

4 (b) where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 15. Also relevant and considered in this case are Sections 2.1(o), 43(1), 60(1) and 61 of the Act, along with Policy EN-19: Arising Out Of and in the Course of Employment. Relevant Submissions and Positions 16. The worker s representative briefly outlined the worker s employment with the employer. The worker had been hired as a Store Associate on a part-time basis in 2010, while also working concurrently full-time in a sales position with another employer. After three months, finding the workload too heavy, he resigned his part-time position. 17. The worker s representative stated that the worker had been experiencing difficulties with his feet, but did not associate those difficulties with the wearing of steel toed boots at the time. However, those difficulties resolved quickly following the worker s departure from his part-time position, so medical follow-up was considered unnecessary. 18. About a year later, the worker s representative stated, the worker left his full-time position, due to a downturn in the economy. The worker then became employed as a Business Associate with another employer, during which he experienced no difficulties with his feet, not being required to wear steel toed footwear. 19. The worker s representative indicated the worker was rehired in April 2013 with the same employer with which he had worked part-time in About a month into his employment, the worker began to experience pain in his feet and was having difficulty working his eight hour shifts, due to the requirement for wearing steel toed footwear. The worker requested, and was granted, a reduction in his shifts to six hours. 20. The worker s representative stated that in August 2013 the worker was taken off work by his doctor due to his increasing foot symptoms. The worker s representative contended that, due to the unavailability of Form 6, Worker s Report of Injury forms with the employer, the worker was unable to complete this form until he was finally able to procure a form through another means. 21. The worker s representative indicated the worker then sought medical treatment for his feet and in late August 2013 he was diagnosed with plantar faciitis and tendonitis and was prescribed orthotics for fitment in the steel toed footwear. 22. With respect to the matter of the worker having been enrolled in a Mobile Crane Operator s program in September 2013, the worker s representative contended that the employer was aware and agreed when the worker was hired in April 2013 that he had been accepted into this program. Accordingly, his hours would be reduced at that time. The worker s representative contended the employer is now using this against him. 4

5 23. The worker and the worker s representative contended that the employer has misrepresented the worker s situation in disputing his claim for injury on duty. They suggested that indeed the requirement to wear the safety footwear, specifically steel toed footwear, is the root cause of the difficulties with respect to his feet. 24. The worker s representative also stated that there is no dispute that the worker suffers from Psoriasis. Treatments the worker has been receiving for this malady have been improperly accepted by the employer and the Commission as evidence of a pre-existing foot condition and improperly used to deny his claim for injury on the job. 25. The worker and the worker s representative argued that the evidence in this case supports that the worker s difficulties with his feet occurred during normal duties at work while working on a concrete floor and while wearing steel toed footwear. Accordingly, the worker s claim should be approved. 26. The representative for the employer, Ms. Dworak, stated that the worker first submitted his report of bilateral ankle difficulties on August 26, 2013, as a result of his having to walk on concrete floors. The employer had no indication of any such difficulties prior to the filing of the worker s report of injury. 27. Ms. Dworak contended that no specific incident was reported to the employer that would trigger a bilateral ankle injury. The worker had previously worked with this employer and was aware of the duties of the position, which required the wearing of safety footwear and the requirement to walk on concrete floors, when he was rehired in April Nothing had changed in this regard upon his rehiring. 28. Ms. Dworak also suggested that, since walking is an everyday activity of the worker, as with most others, the employer disputes that walking in his job is not any different from walking in his activities of daily living. Therefore, the employer contended, it is not possible to relate the activities of the worker s job as any more or less responsible for any difficulties associated with his ankles. Furthermore, the employer suggested, it is equally difficult to attribute the worker s ankle problems to safety footwear over any other footwear the worker may wear in his daily personal life. 29. Ms. Dworak contended that, while the employer requires the wearing of safety footwear, the employer does not specify the actual nature or composition of the requisite footwear. The employer does not stipulate such footwear must be steel toed boots; this footwear could be comprised of other composite materials available and, since the employer does not reimburse for such footwear, the worker was free to purchase any type of safety approved footwear. 30. Ms. Dworak indicated that evidence shows that the worker had been seeing a Podiatrist for a number of years and there has been no evidence that this was in any way relevant to his work duties. Ms. Dworak stated that the employer has not been presented any evidence that the worker s foot problems are related to his employment. Therefore, the decision of the Internal Review Specialist should be upheld. 5

6 31. The Commission determined, in its review of the medical information on file, together with information submitted by the worker and the employer, that the weight of evidence does not support that the worker s foot problems are related to his work activities and, therefore, did not arise out of his employment. 32. The Commission also rejected any suggestion that the worker s foot and ankle problems were an aggravation of a pre-existing condition. The Commission therefore rejected the worker s claim for compensation. Analysis 33. This case involves a worker who has worked in a variety of positions, which involved standing and walking, for approximately thirty years. The central issue to this decision involves the five months during which he was employed with his most recent employer, which required that he wear safety footwear in a work environment that required him to be on a concrete floor for virtually the entire period of his shifts. 34. The worker, who had worked part-time with this same employer for a three month period in 2010, had been rehired in April 2013 on a part-time basis, working hours per week, performing basically the same, or similar, duties to what he had been performing during his earlier employment period in The same requirements with respect to working on a concrete floor and the wearing of safety footwear were also present, as well. 35. The worker testified that when he was hired he explained to his employer that he had been accepted for a training program for Mobile Crane Operator, to begin in the fall of He indicated the employer was understanding and agreeable that his hours could be decreased accordingly at that time. 36. The worker indicated that about a month and a half after he began working, he found that he was having difficulty working his full eight hour shift due to discomfort with his feet. He asked that his shifts be reduced to six hours, as a result. By June 2013 the worker was experiencing painful symptoms with first his left foot and later both feet, which he attributed to his being required to wear steel toed footwear and standing and walking on a concrete floor. On August 29, 2013, during a visit with his treating physician, the worker was diagnosed with plantar fasciitis and tendonitis and was taken off work. Orthotic moulded inserts were recommended for insertion into his safety boots. Subsequent visits to his treating physicians indicated no significant changes in his condition until late October 2013, after the orthotics had been inserted. 37. The worker filed a claim for work related bilateral injury to his ankles on August 26, 2013, citing Walking on concrete floor and injury to his right and left ankle as causative to his injury. 38. The employer, through its representative, filed an objection to the claim on August 29, 2013, stating, in part: 6

7 1. No specific accident has been reported to support a workplace injury. 2. The mechanism of injury reported is walking. As with most positions at the [employer s premises], and with all activities in day to day life, walking is required. Since the condition being reported is walking, there is no evidence to support that [the worker s] injury arose out of the course of employment as walking occurs anywhere and everywhere the associate is mobile, not just at work. In light of this fact, it is inaccurate to relate his injury to his work duties and to support that his condition arose in and out of the course of employment. 3. The employer cannot identify that [the worker s] walking at work outweighs walking and standing in his daily personal life. 4. The employer can confirm that there was no change in duties that required increased standing and walking. The work environment remains the same and the distance of walking the store floor is unchanged. 39. On September 13, 2013 the employer submitted to the Commission a Worksite Assessment/Physical Demands Analysis of the job the worker had been performing. This document had been completed in May 2002 for another location of the employer, but is considered representative of the duties performed by the worker at his local location. This would be representative of the worker s general duties both during his employment in 2010, as well as during his employment period in Evidence on file indicates the worker had received ongoing podiatry treatment on multiple occasions since January 2010, primarily relative to a pre-existing condition of psoriasis. However, there is also evidence the worker had received injections for unspecified other conditions. 41. In response to a request by the Intake Adjudicator for comment as to whether the worker s symptoms were related to his work duties, the Commission s Occupational Therapy Consultant commented on October 25, 2013 in a WHSCC Claim Notes, in part: Based on the information provided, it appears that this worker has has (sic) a longstanding foot issue for which he has received 25 podiatry treatments since January The worker has been provided with custom foot orthotics some time between his GP visits of October 8 and 22 nd. There are no reports on file regarding the foot assessment, indications for orthotics or details of fabrication. The orthotic provider is unknown. The workers current foot symptoms in the context of this injury report have been diagnosed as achilles tendonitis and plantar fasciitis. There is reference to acute achilles tendonitis and boot pressure 7

8 Based on review of this file in its entirety, it appears that this worker has a pre-existing foot condition. I am unclear as to whether the current injury is a continuation of this condition or a new condition. When I look at the file and the job demands, I have difficulty associating these demands with the development of an acute achilles tendonitis or plantar fasciitis based on the nature of the work and there being no significant risks noted that would be readily associated with these conditions. The worker works part time which would mean limited exposure and has a limited work history with this employer. 42. In a follow-up WHSCC Claim Notes on October 31, 2013, the Occupational Therapy Consultant noted:, as per my previous review, I have difficulty associating these demands with the development of an acute achilles tendonitis or plantar fasciitis based on the nature of the work and there being no significant risks noted that would be readily associated with these conditions. The worker works part time which would mean limited exposure and has a limited work history with this employer. The information from the Podiatry Associates indicates a skin condition called psoriasis which has resulted in very thick nails and thick skin on his heels. For this condition he has had ongoing podiatry treatments for several years. The medical on file with respect to the current issues (tendonitis, fasciitis, and boot pressure) supports that these issues are more likely associated with the workers significant pre-existing foot condition and not the job demands. 43. The worker has been assessed by two treating physicians. He was assessed by one physician on August 29, 2013, who noted a worsening of his left foot with a diagnosis of plantar fasciitis and tendonitis. The physician recommended moulded orthotics and took him off work. He was assessed by a different physician on September 12, 2013 who noted the same foot problems and also supported the orthotics. By late September, no significant changes were noted by the physician, even though the worker had been off work for a month by this time. In late October, one physician noted moderate improvement but did not clear the worker for a return to work. On this occasion, the physician noted the worker s Achilles tendonitis to boot pressure needed for concrete floor work. 44. I note the following Sections of the Act: Section 2(1)(0) of the Act states: 2(1) In this Act (o) injury means (i) an injury as a result of a chance event occasioned by a physical or natural cause, 8

9 (ii) (iii) (iv) (v) an injury as a result of a wilful and intentional act, not being the act of the worker, disablement, industrial disease, or death as a result of an injury arising out of and in the course of employment and includes a recurrence of an injury and an aggravation of a pre-existing condition but does not include stress other than stress that is an acute reaction to a sudden and unexpected traumatic event. Section 19(1) of the Act states, in part: 19.(1) The commission has exclusive jurisdiction to examine, hear and determine matters and questions arising under this Act and a matter or thing in respect of which a power, authority or distinction is conferred upon the commission, and the commission has exclusive jurisdiction to determine (a) whether an injury has arisen out of and in the course of an employment within the scope of this Act; (b) the existence and degree of impairment because of an injury; (c) the permanence of impairment because of an injury; (d) the degree of diminution of earning capacity because of an injury; Section 43(1) of the Act states, in part: 43(1) Compensation under this Act is payable Section 61 of the Act states: a) to a worker who suffers personal injury arising out of and in the course of employment, unless the injury is attributable solely to the serious and willful misconduct of the worker. Where the injury arose out of the employment, it shall be presumed, unless the contrary is shown, that it occurred in the course of the employment, and where the injury occurred in the course of employment, it shall be presumed, unless the contrary is shown, that it arose out of the employment. 9

10 45. Policy EN-19: Arising Out of and in the Course of Employment provides some further direction with respect to Section 43(1) of the Act and provides the following, in part: The term arising out of and in the course of employment means the injury is caused by some hazard which results from the nature, conditions or obligations of the employment and the injury happens at a time and place, and in circumstances consistent with and reasonably essential to the employment. Arising out of refers to what caused the injury; in the course of refers to the time and place of the injury and its connection to the employment. 46. The worker had been employed with this employer for approximately three months in 2010 and there is no evidence on file, nor was any evidence presented at the hearing, that he had experienced any difficulties associated with either walking on a concrete floor or wearing safety footwear. It is clear that the requirement that workers wear safety footwear is long standing with this employer. In fact, the Worksite Assessment/Physical Demands Analysis, which was completed in 2002, contains the following: Protective Equipment Used: Safety work boots - back brace. 47. The worker, who would have been aware of the safety footwear requirement when he was rehired in April 2013, having worked with the employer previously, indicated he began to experience difficulties with his feet about six weeks into his latest employment. A few months later he was diagnosed with Achilles tendonitis and plantar fasciitis. The worker also indicated in file evidence and at the hearing that he has had a long history of working in sales that required extended periods of time standing on my feet. He contends that he did not experience any foot problems, however, until about six weeks after becoming employed with his latest employer for the second time. The worker indicated in file evidence that, while he has had a psoriasis condition and has lived with this condition for over forty five years and had regular medical treatment for it, the tendonitis and plantar fasciitis, as noted above, did not assert itself until after he began his current employment term in April The worker s treating physicians diagnosed the worker with Achilles tendonitis and plantar fasciitis, but did not provide any objective information with respect to how long the worker may have been experiencing these problems or what may have caused them beyond subjective commentary supplied by the worker that the safety boots and walking on a concrete floor were contributing factors. In a late October 2013 visit, one of his treating physicians noted: Achilles tendonitis to boot pressure needed for concrete floor work. 49. The Commission s Occupational Therapy Consultant has attributed the worker s foot problems to his pre-existing foot condition, which he indicates he has had for forty-five years. The Consultant indicates she has difficulty associating the demands of the worker s job with the development of acute Achilles tendonitis or plantar fasciitis, based on the nature of the work and the absence of any significant risks that would be readily associated with these conditions. The part time nature of the worker s employment, which averages about 28 hours per week, limits the worker s exposure to the workplace and he had only worked at the location for about six weeks when he claimed to have experienced difficulty with his left foot, which gradually spread to his right foot, as well. The Consultant concludes that, on the 10

11 basis of the medical information on file, the worker s foot problems are more likely associated with his significant pre-existing foot condition and not the job demands. 50. In his Internal Review decision on January 29, 2014, the Internal Review Specialist stated, in part:, I have reviewed the medical information on file along with your submission, the submissions of your employer, the worker s report of injury, the employer s report of injury, and the remaining file evidence. Although you have been diagnosed with tendonitis and plantar fasciitis, I find that the weight of evidence does not support that this diagnosis is related to your work activities and did not arise out of your employment. Therefore, on the balance of probabilities, I find that the Case Manager followed legislation and policy in denying your claim for compensation. 51. My review of the body of evidence in this case has raised the following issues: (i) (ii) (iii) The evidence is clear that the worker, by his own admission, has suffered from psoriasis for over forty-five years but this condition has been managed through medical treatments. The worker was diagnosed with plantar fasciitis and tendonitis in August 2013, over four months after he had been hired by his employer. It is clear that, notwithstanding the fact that the worker had not experienced similar symptoms during his previous employment period with the same employer in 2010, his diagnosis of plantar fasciitis and tendonitis emerged after he was rehired in April 2013, with the attendant requirement that he wear safety work boots. 52. On the basis of the foregoing, the following questions must be answered in order to satisfy the requirements under Section 60 of the Act and Policy EN-19: Arising Out of and in the Course of Employment: Was the Achilles tendonitis and plantar fasciitis caused by the worker s employment and/or was his medical condition an employment-related aggravation of a pre-existing non-compensable condition, or a combination of both? 53. As already indicated, while the worker had a long history of psoriasis, which he was able to manage with the aid of medical treatment, he did not experience any foot problems until about six weeks after he was rehired in April The employer has contended that no specific mechanism of injury was reported by the worker, except that of walking, which the employer maintained, is a normal action of a person, whether at work or in normal activities of daily living. However, the evidence is that the worker had not experienced any such problems with his feet until about six weeks into his employment. A major component of the worker s job involved being on his feet, walking on the concrete floor, engaging with prospective customers. So, the worker was in the course of his employment while walking because he was doing so at his job site and in the course of his shift. So, the employer s argument on this point cannot be used to establish that the worker s claim is not compensable, because it is based on an erroneous view of the Act. Whether the worker was 11

12 also required to walk in the activities of daily living was not the point. The evidence establishes that the worker was in the course of performing employment functions when he did experience the symptoms. The worker was demonstrating product to customers, and moving about the employer s premises, a duty that required him to be on his feet, wearing his safety work boots, on the concrete floor. 54. The Commission s Occupational Therapy Consultant acknowledged that, based on her review of the worker s file, he appeared to have a pre-existing foot condition. The Occupational Therapy Consultant, however, indicated she was unclear as to whether the current injury is a continuation of this condition or a new condition The Consultant then went on to conclude that the tendonitis, fasciitis and boot pressure are more likely associated with the worker s significant pre-existing foot condition and not the job demands. 55. Again, my review of the file evidence indicates that, while the worker had long-standing, manageable psoriasis, the plantar fasciitis and tendonitis occurred after he went to work in April The evidence is that this was attributable to boot pressure, his having to wear safety work boots on concrete floors in the workplace. Again, the employer suggests that this could have been caused by walking outside the workplace; however no evidence was provided that could substantiate or refute this suggestion. 56. Section 2(1)(o) of the Act defines an injury as a chance event occasioned by a physical or natural cause. It also includes disablement and an aggravation of a pre-existing condition This injury must arise out of and occur in the course of employment. If the injury occurred in the course of employment, in accordance with Section 61 of the Act, the injury is presumed to arise out of the employment and be work-related. 57. After examining the evidence in this case, I find that the weight of evidence favours the worker that an injury, namely Achilles tendonitis and plantar fasciitis, took place in the course of his employment with the employer. The symptoms became evident after about six weeks on the job and became increasingly worse during the employment term. The worker had even reduced his hours of work in an attempt to ameliorate his discomfort. However, his foot problems got worse until the worker had no choice but to seek medical assistance. Orthotics aids were prescribed by the worker s treating physician and this seemed to help later on. The employer dismissed the worker s contention of injury, suggesting that the worker s foot problems were as likely to be caused by his walking in his activities of daily living as by his walking at work. However, no evidence was provided to substantiate that walking in his normal activities was the cause of his problems. The evidence does point, however, to the fact that the worker s problems began after he started work with the employer and progressively worsened to the point he had no choice but to seek medical assistance. Finally, there was also a specific finding made by one of the treating physicians which linked the Achilles tendonitis to boot pressure, an activity which the worker carried on at work. 58. Since, when viewed in accordance with Section 60 of the Act, the weight of evidence suggests the injury took place in the course the employment, a rebuttable presumption arises that the injury arose out of the employment. The Commission s Consultant suggested that there was difficulty associating the duties of the worker s employment with the injury, but 12

13 I do not believe that this general statement is sufficient to rebut the presumption, in light of the contrary opinion by the treating physician and the overall circumstances of the case. I cannot conclude that the balance of probabilities weighs against the worker. 59. Even though I find that the worker may succeed on the analysis noted, I also note that there was a secondary error in how the definition of injury under Section 2(1)(o) was approached in this case. There is evidence which suggests that the worker has a pre-existing condition in the feet but it was not apparent to me, in my review, that the Commission explored the possibility that the employment could have aggravated it. The Commission eventually made this conclusion, but seemed to be proceeding on the basis that the worker s condition and the employment activities were mutually exclusive and did not consider the effect one may have had on the other. Aggravations of pre-existing conditions are compensable under the Act, and the reasoning does not adequately deal with this analysis. Once there is a finding of a pre-existing condition in the injury area, the next step in the analysis should be to determine whether or not there is an employment-related aggravation. 60. So, even if the argument could be successfully advanced that the injury may not have been entirely caused by the wearing of the safety footwear in the workplace, there is still the issue, as raised by Section 2(1)(o) of the Act, of whether the injury could have been an aggravation of a pre-existing condition, the worker s long-standing psoriasis. The Occupational Therapy Consultant suggested that the worker s problems of tendonitis, fasciitis and boot pressure are more likely associated with the workers (sic) significant pre-existing foot condition and not the job demands. The Internal Review Specialist indicated that the worker s treating physicians had not made any connection between the tendonitis and plantar fasciitis and the worker s pre-existing psoriasis. The Internal Review Specialist rejected any notion that the worker s injury was an aggravation of his pre-existing psoriasis. However, this appears to be circular, as the inquiry had to be made in the first place whether the employment could have aggravated the condition. Therefore, to the extent that there is no evidence on this issue by reason of it not being investigated, this is also an error on the part of the Commission. The required provisions of Section 2 of the Act were not fully applied. I agree with the Internal Review Specialist on this point. The worker, as already noted earlier, had experienced psoriasis for forty-five years but was able to manage the condition through medical treatment. 61. I have reviewed the evidence on file and I have considered the presentation of the worker s and the employer s representatives in this case, as well as the applicable legislation and policies. There seems to be little doubt that the worker has experienced medical problems with both his feet, beginning not long after he began working with the employer, where he was required to wear safety work boots. These problems had not apparently asserted themselves to any significant degree, if at all, in any of his previous jobs, which had required standing and walking, but which had not required the wearing of safety work boots. The worker s problems became progressively worse through his employment term, even with reduced working hours, to the point where he was obliged to seek medical assistance and he was taken off work by his treating physicians. 62. On the basis of the foregoing, I find, on the balance of probabilities, that the worker s ankle and foot symptoms of plantar fasciitis and Achilles tendonitis occurred in the course of his employment, and are presumed to have arisen out of his employment, in accordance with 13

14 Sections 61, 43, and 2(1)(o) of the Act, and Policy EN-19: Arising Out of and in the Course of Employment. 63. Accordingly, I find that the weight of evidence, on the balance of probabilities, in accordance with Section 60(1) of the Act, favours the worker in this case and, therefore, I find that the Commission erred in finding that the worker s ankle and foot symptoms did not arise out of or in the course of his employment. The Commission s decision is overturned and the worker s claim is allowed. Decision 64. I find that the Commission erred in its decision of January 29, 2014 in finding that the worker s ankle and foot symptoms did not arise out of and in the course of his employment. The Commission s decision is overturned and the worker s claim for compensation is allowed. Review Allowed Gordon Murphy Review Commissioner October 15, 2014 Date 14