WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2004 ONWSIAT 903 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 740/03R [1] This request for reconsideration was considered May 4, 2004, by Tribunal Vice-Chair J.G. Bigras. THE RECONSIDERATION REQUEST [2] The worker is requesting that the Tribunal reconsider its Decision No. 740/03, dated July 9, The reconsideration request form appears to have been prepared by the worker and sent to the Tribunal by his representative on October 3, [3] The Vice-Chair had before him Decision No. 740/03, the reconsideration request form, and a written submission dated August 11, 2003, prepared by then worker s representative, P. King, Workers Compensation Specialist with Nelligan O Brien Payne LLP. THE ISSUES [4] The worker is claiming that Decision No. 740/03 should be reconsidered because the rationale for the decision overlooks or dismisses important evidence that affects the outcome of the appeal. The representative also argues that the appellant has some new information that was not available at the hearing of April 10, THE REASONS (i) The reconsideration test [5] The Workers Compensation Act and the Workplace Safety and Insurance Act provide that the Appeals Tribunal s decisions shall be final. However, sections 70 and 92 of the Workers Compensation Act and section 129 of the Workplace Safety and Insurance Act provide that the Tribunal may reconsider its decisions "at any time if it considers it advisable to do so". Because of the need for finality in the appeal process, the Tribunal has developed a high standard of review, or threshold test, which it applies when it is asked to reconsider a decision. [6] Generally, the Tribunal must find that there is a significant defect in the administrative process or content of the decision, which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being reopened. The threshold test has been discussed in some detail in Decisions Nos. 72R (1986), 18 W.C.A.T.R. 1; 72R2 (1986), 18 W.C.A.T.R. 26; 95R (1989), 11 W.C.A.T.R. 1; and 850/87R (1990), 14 W.C.A.T.R. 1. [7] In this case, the worker, a letter carrier, was claiming entitlement to compensation for plantar fasciitis. He had transferred to Ottawa after six years as a letter carrier in Toronto. Two

2 Page: 2 years after starting in Ottawa, the worker developed plantar faciitis. The worker attributes the condition to an increased workload as well as the wearing of improper footwear. He was denied entitlement in Decision No. 740/03. [8] Ms King states that the decision (a) the rationale of the decision overlooks or dismisses importance evidence and, (b) that there is new information not available at the hearing which could change the outcome of the case. I have looked at these issues separately. [9] First, the representative states in her submission that some of the facts as related by the worker are not exactly as reported in the decision. She admits that correcting these facts would not necessarily alter the outcome of the decision bit that the errors show that the Vice-Chair was not paying proper attention to the details as related by the worker in is evidence. I will not refer to the transcript of the hearing and accept the representative s statement that the worker wore sneakers to deliver mail in winter while in Toronto and not after transferring to Ottawa. I also accept as true that the worker did not state that an additional relay box was required on his route due to additions of points of delivery on his route. However, it must be noted that these facts, now shown to have been in error, were more favorable to the worker s case than detrimental to it. It now shows that the worker had been employed two winters in Ottawa before developing the foot problem at issue. Also, the view that the worker had requested an extra relay box supported the issue of an increased workload. Therefore, while I agree that, regrettably, the decision failed to be precise of these the above facts, correcting these errors would not likely alter the decision. (a) Was important evidence overlooked or dismissed? [10] The worker s representative questions the Vice-Chair s finding that the facts of the case do not support then worker s claim that employment condition caused or, at worst, aggravated a pre-existing foot condition. She challenges the finding that the worker s problem was more likely caused by the natural ageing process than by his conditions of employment. [11] The worker s representative argues that the Vice-Chair did not pay attention to the worker s evidence pertaining to the change in working conditions and the development of his disabling foot xcinditi0on. However, I note that the worker s evidence is detailed in paragraphs to 15 of Decision No. 740/03. In paragraphs 39, 40 and 41, 42, 43 and 44, the Vice-Chair gives his reasons for not accepting the worker s evidence at its face value. There are no suggestions that the worker was not credible in his claim that his problems resulted from employment, but, as a witness with self-interest in the case, he may have had biased views and could have unwillingly exaggerated or adjusted some of his facts. [12] Decision No. 740/03 weighed the worker s evidence as well as that of the employer s witness who explained the route changes, placing that evidence in the worker s employment history. It showed that the worker developed foot problems in May 1997 that the condition was diagnosed by the family physician in August This placed the first symptoms after the end of winter when, the worker claims, he wore inappropriate footwear. Relying on the unchallenged figures advanced by the employer that the route change only caused a 2.4% increases in the daily workload, representing six and a half minutes in time, the Vice-Chair found that this was not a significant change causing a disablement.

3 Page: 3 [13] On the issue of the footwear, the worker s argument that he wore Sorel boots during the winter of and that, whole providing warmth, these boots were not appropriate for walking. The Vice-Chair found in Decision No. 740/03 that he could not accept the evidence of an pedorthist who stated that the Sorel boots caused the worker s plantar fasciitis. The decision states that pedorthist fits footwear, and may well say that a certain boot is not well-fitting, but he is not a medical person who can diagnose the cause of plantar fasciitis. I cannot consider any further argument on this issue by the worker s representative. The decision makes no finding contrary to the view that the boots worn by the worker in his employment may not have been the most appropriate for his type of employment. This does not, by itself, show that the worker s condition arose out of and in the course of employment. Other facts were considered and placed in the balance of evidence. [14] Turning to the medical evidence, the representative argues that the Vice-Chair did not accept the treating physicians statements that the worker s foot problems resulted from his employment. The decision set out that, according to a paper on plantar fasciitis prepared for the Tribunal by Dr. R. Harris, the condition is more likely to be caused by the natural ageing process than by activities such as those engaged in by the worker. The representative argues that Dr. Harris stated that such condition usually develops in the forties and that the worker was only 37 years old at the time it was first diagnosed. I note that the reference to the age is an average and that the difference of three years in the present case does not represent a significant difference. [15] The worker takes exception at the fact that the Vice-Chair in Decision No. 740/03 did not accept the medical view of Drs. Satarosa, Shamess, Jain and Gillen who stated that hey believed that the worker s problem resulted from his employment. As stated in paragraph 36 of the decision, these physicians did not elaborate on the reasons why they see such a causal relationship. I note that the Vice-Chair was not given the case history, which was given by the worker to the treating doctors, or did the doctors give any medical background as to why they find a causal relationship. As stated in Decision No. 915 (1987) 7 WCATR 1 at 80-81, the final decision on medical issues must be made by lay decision-makers. The decision states that medical issues are, at bottom, factual issues and, like the other factual issues in non-criminal proceedings, they fall to be decided on the balance of probabilities. The question is, on the basis of all medical evidence received, what seems most likely to be the right answer? Having considered the different medical views, the Vice-Chair arrived at the conclusion that Dr. Harris view was more likely the correct one in this case. [16] I find no merit to the representative s argument that the decision runs contrary to the numerous decisions by the WSIAT awarding entitlement to injured workers who were only required to walk on cement floors or behind hotel desks for prolonged periods. Ms King continued by stating that the workers in the other decisions were not required to carry extra weight, as is the case for a letter carrier. I note that each decision is taken on the merits of the individual case based on the evidence at hand. I cannot consider awarding benefits because another worker, in another case, appeared to have an easier task to perform. [17] Nor can I accept the representative s comment that the physical makeup of a route is difficult to understand unless an individual is submersed in this area of expertise. Tribunal

4 Page: 4 decision-makers base their decisions on the best evidence and, on occasion, conduct further investigations when required to understand an issue. In the present case, the Vice-Chair heard the worker s evidence as well as the technical expertise given on the Letter Carrier Route Measurement System (LCRMS) as well as the particulars of the route on which the worker was placed. It must also be said that the case was not the first heard by this Vice-Chair involving letter carriers, their routes, their tasks, and the standards in place to measure their employment activities. [18] For the above reasons, I do not find that the request for reconsideration meets the threshold test for re-opening the decision. (b) Is there new evidence, which could change the decision? [19] The worker s representative submitted a report, dated February 12, 2003, signed by Dr. M. Gillen, who was then a specialist in physical medicine and rehabilitation with the Nepean Clinical Associates. Dr. Gillen had seen the worker sometime before he hearing of this case and stated in a brief note that the worker s condition was caused by his employment. As stated in Decision No. 740/03, no reasons were given. [20] In her submission, Ms King states that Dr. Gillen s report, dated February 12, 2003, which discusses the requirement for insoles after the onset of plantar fasciitis, is new evidence that was not available at the hearing of this case. The worker s representative explained in her submission that she had instructed the worker to take the boot to Dr. Gillen and his pedorthist to obtain their opinion as to whether this apparel was related to the onset of his condition. The doctor s report was not made available before the hearing. [21] The relevant paragraph from Dr. Gillen s report which Ms King quotes in her submission states as follows: There is a requirement to look at use of a boot in winter. He has a Sorel boot with a solid heel. He brought the boot in. The wear pattern shows a predominant heel strike with very little cushion effect. This would promote or aggravate his plantar fasciitis. He should continue with current restrictions. Use of the boot itself would not prevent ongoing problems and probably should be avoided on a regular basis. [22] I fail to find Dr. Gillen s above statement as relevant evidence on causation. It shows that, close to six years after the worker was first diagnosed with plantar fasciitis, Dr. Gillen looked at the boot, which the worker had been wearing sometime prior to such a diagnosis. The boot has a solid heel showing a heel strike with little cushion effect. Dr. Gillen feels that the solid heel could have promoted or aggravated plantar fasciitis. It does not answer what pattern could be found in the other boot and fails to explain the bilateral development of plantar fasciitis diagnosed by. Dr. Gillen as bilateral calcaneovalgus, with severe forefoot pronation. Also, in view of the facts that the symptoms appeared in mid-may, a considerable period of time after the boot would not have been required or used. Dr. Gillen s opinion that the worker required a sole to cushion the heel s strike against the solid boot would prevent ongoing problems only lends support to the final paragraph of Decision No. 740/03 which states as follows: ( ) Walking and weight bearing (after the initial appearance of symptoms) only prolonged the symptoms and this explains why the condition improved after the worker

5 Page: 5 was removed from this type of employment. The situation is similar to the worker with a weak back often referred to in Tribunal jurisprudence. This is the worker with a weak back who accepts employment in a physically exerting position, which causes pain in his back, but no structural damage. This worker is not fit for that employment but it cannot be said that the employment caused the back pain or his inability to continue in his employment. [23] For those reasons, I do not find that the new medical evidence would likely change Decision No. 740/03 and therefore; it does not meet the threshold requirement to re-open the decision. THE DECISION [24] The request for reconsideration is denied. DATED: May 11, 2004 SIGNED: J.G. Bigras