WORKPLACE SAFETY AND INSURANCE
APPEALS TRIBUNAL
DECISION NO. 1849/11
BEFORE:
J. Noble: Vice-Chair
HEARING:
September 22, 2011, at Hamilton
Oral
DATE OF DECISION:
October 12, 2011
NEUTRAL CITATION:
2011 ONWSIAT 2337
DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated
July 23, 2010
APPEARANCES:
For the worker:
Mr. J. Pasel, Union representative
For the employer:
Mr. H. Sakamoto, Office of the Employer Adviser
Interpreter:
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 7th Floor
Toronto ON M5G 2P2
505, avenue University, 7e étage
Toronto ON M5G 2P2
Decision No. 1849/11
REASONS
(i)
[1]
Issues
The issues to be decided in this employer appeal are whether the worker’s entitlement for
the foot condition should be rescinded; whether the worker’s entitlement for Loss of Earnings
(LOE) benefits for the period from April 1 to November 30, 2009 should be rescinded; and
whether the worker’s entitlement for health care benefits prior to and since March 9, 2009 should
be rescinded.
(ii)
Background
[2]
The employer reported to the Board on September 16, 2008 that the worker had reported
an injury on July 15, 2008 that occurred that day. The Employer’s Report to the Board (Form 7)
stated that the worker was stepping off a burning table and came in contact with an uneven
surface causing his toes to raise up and his heel to come down, and the worker felt a
burning/pulling sensation in his ankle area. The worker was employed as a machine operator.
The Employer’s report stated that at the time the worker did not seek medical attention because
he thought it would go away.
[3]
In a decision dated March 4, 2009, the Board Adjudicator stated that the worker had been
granted entitlement for a right foot injury on July 15, 2008, which was accepted on a no-lost-time
basis. The decision dated March 4, 2009 stated that entitlement had been rescinded and it stated:
As you are aware, you were assessed at the regional-evaluation centre (REC) by
Dr. McMillan on February 26, 2009 at which time your diagnosis was confirmed as rightplantar fasciitis.
The Workplace Safety and Insurance Board (WSIB) does not grant entitlement for this
diagnosis which is considered to be non-occupational in nature. Consequently,
entitlement has been rescinded, and no further healthcare costs will be honored.
[4]
The worker appealed this decision to the ARO.
[5]
A memo to the file dated April 2, 2009 stated that the worker called to advise that he left
work early the day before as the employer told him they are no longer obligated to accommodate
the worker given that his claim was rejected by the WSIB. Information contained in the Case
Record indicates that the worker laid off work and collected benefits from the employer’s
insurance carrier.
[6]
The ARO decision under appeal by the employer dated July 23, 2010 granted the
worker’s appeal and concluded as follows:
There is no doubt that the worker has congenital conditions of bilateral flat feet (pes
planus) and more rigid on the right. It is then not surprising to learn that he has had foot
problems requiring the use of orthotics before 2008. However these underlying
conditions presented no problems for the worker in the performance of his work duties
until the July 15, 2008 incident.
Noting the immediate onset of symptoms, their continuation post-incident and the need
for treatment, I am satisfied that a causal relationship between the work activity on July
15, 2008 and the diagnosis of a brevis tendon and plantar fascia strain is established. The
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Decision No. 1849/11
operating area will re-instate any health care benefits rescinded prior to March 9, 2009.
The worker will receive benefits for the health care expenses he has incurred since
March 9, 2009. The worker will also receive full LOE benefits from April 1, 2009 until
his return to work on November 30, 2009, having regard for insurance carrier benefits
received.
[7]
The employer appeals this decision to the Tribunal.
(iii)
[8]
Law and Policy
As the injury date is July 15, 2008, the Workplace Safety and Insurance Act (WSIA) is
applicable to this appeal. Sections 13 and 43 of WSIA are applicable, and provide in part as
follows:
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.
(2) If the accident arises out of the worker’s employment, it is presumed to have occurred
in the course of the employment unless the contrary is shown. If it occurs in the course
of the worker’s employment, it is presumed to have arisen out of the employment unless
the contrary is shown.
(3) Except as provided in sections 18 to 20, the worker is not entitled to benefits under
the insurance plan if the accident occurs while the worker is employed outside of
Ontario....
43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments
under this section beginning when the loss of earnings begins. The payments continue
until the earliest of,
(a)
the day on which the worker’s loss of earnings ceases;
(b) the day on which the worker reaches 65 years of age, if the worker was less than 63
years of age on the date of the injury;
(c)
two years after the date of the injury, if the worker was 63 years of age or older on
the date of the injury;
(d) the day on which the worker is no longer impaired as a result of the injury.
(2) Subject to subsections (3) and (4), the amount of the payments is 85 per cent of the
difference between,
(a)
the worker’s net average earnings before the injury; and
(b) the net average earnings that he or she earns or is able to earn in suitable
employment or business after the injury.
However, the minimum amount of the payments for full loss of earnings is the lesser of
$15,312.51 or the worker’s net average earnings before the injury.
(3) The amount of the payment is 85 percent of his or her pre-injury net average earnings
less any earnings the worker earns after the injury if the worker is co-operating in health
care measures and,
(a)
his or her early and safe return to work; or
(b) all aspects of a labour market re-entry assessment or plan.
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Decision No. 1849/11
(4) The Board shall deem the worker’s earnings after the injury to be the earnings that the
worker is able to earn from the employment or business that is suitable for the worker
under section 42 and,
(a)
if the worker is provided with a labour market re-entry plan, the earnings shall be
deemed as of the date the worker completes the plan; or
(b) if the Board determines that the worker does not require a labour market re-entry
plan, the earnings shall be deemed as of the date this determination is made….
(7) The Board may reduce or suspend payments to the worker during any period when
the worker is not co-operating,
(a)
in health care measures;
(b) in his or her early and safe return to work; or
(c)
[9]
in all aspects of a labour market re-entry assessment or plan provided to the worker.
Pursuant to section 126 of WSIA, the Board advised that the following Policy Packages
are applicable to this appeal: #1 (Revision #8) – Initial Entitlement; #36 – LOE Benefits; #95 –
Health Care Benefits; #107 – Aggravation Basis/SIEF; and #300 – Decision Making/Benefit of
Doubt/Merits and Justice.
(iv)
Conclusions
A)
[10]
Entitlement for Foot Condition
On the issue of whether the worker’s entitlement for the foot condition should be
rescinded given the employer’s appeal, I do not find for the employer.
[11]
I find that the weight of the evidence, including the medical evidence, indicates that the
worker’s foot condition likely arose out of and in the course of his employment, as the result of
an accident that occurred on July 15, 2008. I find, accordingly, that entitlement for the foot
condition was appropriately granted by the Board.
[12]
I note at the outset that pursuant to section 13 of WSIA, there is entitlement under the Act
for a personal injury that arises out of an in the course of a worker’s employment. Section 13(1)
provides as follows:
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.
[13]
As I have stated above, I find that the weight of the evidence, including the medical
evidence, indicates that the worker’s foot condition likely arose out of and in the course of his
employment, as the result of an accident that occurred on July 15, 2008. I make this finding for
the following reasons.
[14]
First, I observe that the worker testified at the hearing before me that on July 15, 2008, he
had just hooked up a plate with a crane and he stepped down from the burning table, and he
stepped onto a raised rail on the ground and his heel went down and he felt a pull in his right
foot, and he hurt his right foot. The worker testified that he reported the incident to the employer
that day, on July 15, 2008. I accept the worker’s testimony in this regard, since the worker
appeared as a candid and forthright witness, and since the worker’s testimony is in accordance
with other evidence that is before me.
Page: 4
[15]
Decision No. 1849/11
Second, I also observe that the documents on file indicate that the worker reported an
injury to the employer without delay on July 15, 2008. I note in this regard that the Worker’s
Report of Injury to the Board (Form 6) dated September 29, 2008, stated that the worker reported
the injury to the employer on July 15, 2008. This evidence is corroborated by the Employer’s
Report of Injury to the Board (Form 7) which stated that the worker reported the injury in the
morning of July 15, 2008, and which stated that the injury occurred in the morning of
July 15, 2008. I note that the Employer’s Report of Injury to the Board dated
September 16, 2008 also stated as follows:
Worker was stepping off burning table and came in contact with uneven surface
causing his toes to raise up and his heel to come down. He felt a burning/pulling
sensation in his ankle area. At the time he did not seek medical attention thinking it
would go away.
[16]
[17]
[18]
I find that the worker’s testimony at the hearing that he sustained a foot area injury on
July 15, 2008 is corroborated by the worker’s report of accidental injury to the employer which
report occurred on the same day that is, on July 15, 2008.
Third, I find that the weight of the medical evidence indicates that there is compatibility
as between the accident history and the worker’s diagnosis. I am aware that the employer’s
representative submits in this employer appeal that there is a lack of medical compatibility as
between the accident history and the worker’s diagnosis. I do not accept this submission for
reasons that are discussed below.
I note in this regard that in a Health Professional’s Report to the Board (Form 8) dated
October 2, 2008, Dr. Hoosen, the worker’s treating family physician, stated that his
understanding of the accident history was that the injury occurred as follows:
Stepped off burning table ([approx.] 18 inches high) felt a burning, tearing sensation
from ankle to heel.
[19]
In the Form 8 Report to the Board dated October 2, 2008, Dr. Hoosen also stated that the
diagnosis was possible right plantar fascia tear, or right peroneal tendon strain. I find that this
medical reporting indicates that Dr. Hoosen was of the view that the worker could have injured
the plantar fascia area of the foot in the accident, based on the accident history. I place
significant weight on the opinion of Dr. Hoosen, since as a physician Dr. Hoosen was qualified
to provide an opinion on medical causality; and since Dr. Hoosen saw and examined the worker
prior to providing the Form 8 Report to the Board. In my view, this medical evidence indicates
that Dr. Hoosen was not of the medical opinion that an injury to the plantar fascia area of the foot
was not compatible with the accident history.
[20]
I also note that the worker was seen and examined at a Board Regional Evaluation Centre
(REC) for a Multidisciplinary Health Care Assessment at the request of the Board on
February 26, 2009. The evaluating physician, Dr. R. McMillan, and the evaluating
physiotherapist, Ms. D. Gillis, wrote the joint REC report dated February 26, 2009. The REC
report dated February 26, 2009 stated in part as follows:
His injury occurred on July 15, 2008. He had been helping a coworker. He went to step
down and stepped more on the front part of his foot. This caused his toes to hyperextend
and his heel to fall. He described a burning pain in the lateral aspect of the right heel and
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Decision No. 1849/11
ankle. [The worker] felt the symptoms would improve and continued working. Two
months later his symptoms were not improving and he went to see his family doctor,
Dr. Hoosen. Investigations revealed plantar fasciitis….
Physical Examination:
On standing, he had normal posture of the lumbar spine. He had pes planus bilaterally.
He had increased subtalar pronation of the right foot and ankle. His medial and
longitudinal arches remained flat even with removing weightbearing….
Consultations/Evaluations:
Ultrasound of both feet, November 13, 2008. Imaging of the plantar region of the right
foot demonstrated thickening of [the] plantar fascia suggesting plantar fasciitis.
Diagnosis:
Right plantar fasciitis.
Prognosis:
Category 3, partial recovery now and full recovery anticipated in six weeks.
Recommendations:
No further medical investigations are necessary at this time. We have encouraged [the
worker] to continue with home exercises including stretching his calf muscles.
Unless the increased subtalar pronation is modified, we would not expect his pain
symptoms to improve. We would therefore suggest that he be referred for custom full
length semi-rigid orthotics. He should particularly use orthotics within his work boots.
We also recommend that he receive orthopaedic shoes. Athletic shoes which include
anti-pronation or motion control are recommended….
[The worker] should avoid walking in sock feet or bare feet. He should use the orthotic
athletic shoes within the house.
[21]
We see that the health care professionals that authored the joint REC report dated
February 26, 2009 were aware of the worker’s accident history, and they also confirmed the
diagnosis of right plantar fasciitis. The joint REC report dated February 26, 2009 did not state
that the accident history was incompatible with the diagnosis of right plantar fasciitis. The joint
REC report stated that the purpose of the REC assessment was:
To clarify the patient’s medical status and prognosis, and identify recommendations
for future management.
[22]
[23]
In my view, given that the worker’s condition was being reviewed at the REC for the
purposes of a WSIB assessment to clarify the diagnosis and medical status, it is likely that the
health care professionals would have indicated an incompatibility as between the accident history
and the diagnosis, if there was in fact a medical incompatibility between the two. I find that it is
reasonable to conclude that no medical compatibility was seen to exist by the assessing health
care professionals at the REC, given that there was no indication of any medical compatibility in
the REC reporting. I place significant weight on the accuracy of the REC report since it was
completed by trained health care professionals who saw and physically examined the worker at
the request of the Board prior to preparing the report.
I further note that the worker was seen and examined by Dr. V. Avram, orthopaedic
surgeon, on March 26, 2009. In his report dated March 26, 2009, Dr. Avram stated:
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Decision No. 1849/11
[The worker] is a very pleasant 45 year old gentleman who was referred to my clinic
regarding post traumatic plantar fasciitis of his right foot.
[The worker] sustained an injury to his right foot on July 15, 2008. At that time he
stepped off a platform, and hyper-extended his right foot on a rail. He immediately
reported it to his employer, and a WSIB claim was initiated. Since that time he has
developed quite severe pain in his left heel associated with some numbness and tingling.
He has been unable to wear work boots and perform all the duties of his job. He has been
quite pro-active in trying physiotherapy and stretching, but this has not relieved his
symptoms. He is interested in a further opinion for surgical or non surgical
management….
On examination, [the worker] has bilateral flat feet, but the flat foot on the right is
significantly worse then the left. This is a rigid flat foot which is not correctable. When
he walks, his heel collapses into valgus and it does not correct into varus when he goes up
on his toes. He is quite tender to palpation along the posterior heel and at the insertion of
the plantar fascia. He has poor mobility of his hindfoot and midfoot. He does not have
signs of lateral impingement, and he is neurovascularly intact.
X-rays reveal no evidence of any acute or chronic fractures or dislocations and no signs
of osteoarthritis. An ultrasound has been done which shows a thickening of the plantar
fascia.
At this time we feel that the only option for [the worker] is an ankle gauntlet brace. He
needs far more support than orthotics can give him to help support his rigid flat foot.
Hopefully this will help him recover from his work associated injury and enable him to
return to full duties in safety shoes….
[24]
[25]
[26]
I note that, as with the assessors who completed the REC report, Dr. Avram was clearly
aware of the worker’s accident history, and he recites it in his report dated March 26, 2009.
Dr. Avram does not indicate in his report that he sees any medical incompatibility as between the
worker’s accident history and the right foot plantar fasciitis. Indeed, Dr. Avram refers to ‘post
traumatic plantar fasciitis of the right foot’. I find that this characterization of the worker’s
injury indicates that it is medically possible for plantar fasciitis to be caused by a traumatic injury
to the foot. I also conclude from Dr. Avram’s report that it is Dr. Avram’s view that the
worker’s accident history was a traumatic injury. I place significant weight on Dr. Avram’s
reporting, since as a specialist in orthopaedic surgery Dr. Avram is qualified to provide an
opinion on diagnosis and medical causality; and since Dr. Avram saw and examined the worker
prior to providing his opinion. I accept Dr. Avram’s opinion, and I conclude that the worker has
a post traumatic plantar fasciitis condition that was caused by the mechanics of the accident that
took place in the work place on July 15, 2008 when the worker stepped off the burning table onto
the uneven surface of the raised rail.
I am also aware that the employer’s representative submits that entitlement should be
denied because the worker had the pre-existing condition of bilateral flat feet, and that the
condition was symptomatic at the time. I do not accept this submission for the following
reasons.
The employer’s representative submits that he relies on the testimony of the witness for
the employer who testified that he saw the worker favoring one leg prior to the workplace
accident of July 15, 2008. I note, however, that the witness candidly stated that he did not know
which leg he saw the worker favoring. I am unable to conclude, based on this evidence, that the
worker’s right foot condition was symptomatic just prior to the July 15, 2008 workplace incident,
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Decision No. 1849/11
and that the worker should therefore have no entitlement for the injury, given the lack of detail
and specificity in the witness’s testimony.
[27]
[28]
[29]
[30]
Also with respect to the submission of the employer’s representative that the worker had
a symptomatic pre-existing condition, I am aware of no evidence submitted by the employer to
indicate that the worker had required time off work prior to July 15, 2008 due to a painful foot
condition. Given the employer’s assertion that the worker had a symptomatic pre-existing
condition, I find that it is likely that the employer would have adduced this evidence in the event
that the worker had missed time from work prior to July 15, 2008 due to a painful foot condition.
I further find that although the worker may have had some form of a pre-existing foot
pain condition, this does not mean that entitlement for a post-traumatic plantar fasciitis condition
should not be granted in the circumstances of this case. I note that the REC report dated
February 26, 2009 stated that the worker had pes planus bilaterally, and this is no doubt a preexisting condition. It may be that this pre-existing condition made the worker more prone to
develop plantar fasciitis, especially on a post-traumatic basis, and this may be a matter that the
employer can pursue through a request for SIEF relief. It is, however, accepted in Tribunal
jurisprudence that the thin skull doctrine applies in WSIB matters, and the fact that the worker
may have had a pre-existing condition does not necessarily lead to the conclusion that the worker
has no entitlement for the right foot injury. I have concluded in this case that I accept the
worker’s testimony that he sustained a specific foot area injury by accident on July 15, 2008,
given the credibility of the worker as a witness and the contemporaneous reporting of the
accident. I have also concluded that the weight of the medical evidence indicates that the
worker’s diagnosis is compatible with the accident history. I find, accordingly, that the
entitlement granted by the Board for the right foot injury was appropriate in the circumstances.
I am also aware that the employer’s representative submits that entitlement should be
denied because the worker’s pre-existing condition of bilateral flat feet was a bilateral condition
and the worker’s claimed accident regarding the right foot does not explain the left foot
condition. I find that I cannot accept this submission. I note that this appeal does not pertain to
any left foot condition, and in this decision I am not granting entitlement for a left foot condition,
or for the bilateral condition of pes planus. I have concluded in this decision that the worker
sustained a specific traumatic injury by accident to the right foot on July 15, 2008, that resulted
in the development of right foot plantar fasciitis. I do not find that the worker’s bilateral preexisting condition of pes planus, or flat feet, is a barrier to my conclusion to uphold the worker’s
entitlement for a right foot injury by accident on July 15, 2008.
I am aware that the employer’s representative submitted Tribunal Decision No. 2053/09
in support of the employer’s position. In Decision No. 2053/09 the Tribunal Panel denied the
worker’s appeal for entitlement for bilateral plantar fasciitis. I have reviewed Decision
No. 2053/09 and I find that it is distinguishable from the appeal before me, in at least one
important respect, that is, the Panel in Decision No. 2053/09 concluded that there was no medical
opinion which attributed the worker’s plantar fasciitis to his work duties. I note that
Decision No. 2053/09 stated:
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Decision No. 1849/11
[14] In
this case it is not necessary for us to determine which type of forces were involved
since there is no medical opinion which attributes the worker’s plantar fasciitis to his
work duties.
[15] As
the Vice-Chair noted in Tribunal Decision No. 1236/09, which the employer relies
on, there is no unanimity in Tribunal decisions either in favour or against entitlement to
benefits for plantar fasciitis but the majority of decisions have generally denied
entitlement on the basis that it is not usually considered to be work related except where
the particular facts of the case make the link probable.
[16] In
this case, balancing all of the factors noted, but particularly the lack of any medical
opinion in favour of a causal relationship between the worker’s diagnosis and symptoms
and his work duties, we conclude that the evidence does not establish, on a balance of
probabilities, that his work duties as a loader with the accident employer made a
significant contribution to its development. As the worker’s representative submits it is
not out of the realm of possibilities that jumping off the truck tears the padding on the
bottom of the foot causing tension. However, a mere possibility of injury is not sufficient
to meet the required standard of a probable link. In a similar vein, the limited medical
reporting establishes a possible link between the worker’s employment duties and the
condition of plantar fasciitis rather than the probable link which is required to establish
entitlement. Consequently, we deny the appeal.
[31]
We see that in Decision No. 2053/09 the Panel remarked that it was particularly the lack
of any medical opinion in favour of a causal relationship between the worker’s diagnosis and
symptoms and his work duties that led the Panel to conclude that there should be no entitlement
for the bilateral plantar fasciitis. This Tribunal decision, then, can be distinguished from the
appeal before me since on the facts of the instant appeal the weight of the medical evidence
supports a finding of medical compatibility between the worker’s accident on July 15, 2008, and
the resulting right foot condition.
[32]
I also note that Decision No. 2053/09 stated that the particular facts of a case may make
the link between work duties and the condition plantar fasciitis probable. That is indeed the case
with the instant appeal, since I have concluded that it was the worker’s accident on July 15, 2008
- in which he stepped down onto an uneven surface and felt right foot pain, which was
immediately report to the employer - which led to the compensable right foot condition.
Whereas in Decision No. 2053/09 the worker claimed that it was his work duties in general that
led to bilateral plantar fasciitis, in the appeal before me the worker claims that he injured the
right foot on July 15, 2008 while stepping down from a height, and I accept that claim.
[33]
Based on all of the foregoing, this aspect of the employer’s appeal is denied.
B)
LOE benefits for the period from April 1 to November 30, 2009
[34]
On the issue of whether the worker should have entitlement for LOE benefits for the
period from April 1 to November 30, 2009 given the employer’s appeal, I do not find for the
employer.
[35]
I find that the weight of the evidence before me indicates that appropriate modified work
was not likely available for the worker during the time period from April 1 to
November 30, 2009. I find, accordingly, that the LOE benefits granted by the Board during the
period from April 1 to November 30, 2009 were appropriately granted to the worker.
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[36]
[37]
Decision No. 1849/11
I note that the employer’s representative made no submissions in this employer appeal
regarding the issue of entitlement for LOE benefits for the period from April 1 to
November 30, 2009. The employer’s representative did not assert, for instance, that suitable
modified work was available for the worker at no wage loss with the accident employer during
the period in question from April 1 to November 30, 2009. The employer’s representative did
submit, as I have discussed above, that the worker should not have been granted entitlement for
the foot condition. I presume that that employer’s appeal concerning the LOE benefits issue in
this appeal is based on the assertion that there was no work related foot injury. I have concluded
in this decision that the worker should have entitlement for the foot injury, and that entitlement
was appropriately granted by the Board. I find, in the absence of any submissions to the
contrary, that it follows that the LOE benefits granted by the Board were appropriately granted
given the worker’s compensable foot condition.
I also observe that there are documents on file which indicate that suitable modified work
was likely not available with the accident employer during the time period in question, from
April 1 to November 30, 2009. I note in this regard that in a memo to the file dated
April 2, 2009, the Board Adjudicator recorded a discussion with the worker and stated:
[The worker] called today to advise that he left work early yesterday as the employer told
him they are no longer obligated to accommodate him given claim rejection by WSIB.
He attended work again today, and was given the same work. When he refused the work,
he met with his union rep, and the employer and the employer told the union about the
claim entitlement having been rescinded….
[38]
[39]
[40]
I also note that according to the ARO decision under appeal dated July 23, 2010, the
worker was provided with accommodated work duties by the employer, in accordance with
recommendations from the family physician, until the Board operating area denied the worker’s
claim in March of 2009, and at that time the employer required the worker to undertake work
duties without any accommodations as of April 1, 2009. According to the ARO decision dated
July 23, 2010, the worker applied for short term disability benefits and then long term disability
benefits under the employer’s insurance plan until his return to work on November 30, 2009. I
accept this information as reliable given that it is in accordance with the other documentation in
the Case Record and given that it was not contested by the employer at the hearing before me.
Based on the weight of the evidence before me, I am satisfied that the worker’s loss of
earnings during the time period from April 1 to November 30, 2009 was as a result of the
compensable foot injury, since suitable modified work was not available with the employer. I
find, accordingly, that entitlement for LOE benefits during this time period was appropriately
granted by the Board.
Based on the foregoing, this aspect of the employer’s appeal is denied.
C)
[41]
Health care benefits prior to and since March 9, 2009
On the issue of whether the worker should have entitlement for health care benefits prior
to and since March 9, 2009 given the employer’s appeal, I do not find for the employer.
Page: 10
[42]
[43]
[44]
[45]
Decision No. 1849/11
I find that the weight of the evidence before me indicates that health care benefits prior to
and since March 9, 2009 were likely appropriately awarded by the Board. I find, accordingly,
that this aspect of the employer’s appeal should be denied.
I note that the employer’s representative made no submissions regarding the issue of
entitlement for health care benefits in the context of this claim and this appeal. The employer’s
representative did not assert, for instance, that a health care benefit was granted to the worker
that was not appropriate for the foot condition. The employer’s representative did submit, as I
have discussed above, that the worker should not have been granted entitlement for the foot
condition. I presume that that employer’s appeal concerning the health care benefits issue in this
appeal is based on the assertion that there was no work related foot injury. I have concluded in
this decision that the worker should have entitlement for the foot injury, and that entitlement was
appropriately granted by the Board. I find, in the absence of any submissions to the contrary,
that it follows that the health care benefits granted by the Board were likely appropriately
granted given the worker’s compensable foot condition.
I also note that the Board file contains references to medications that the worker may
have required in relation to the foot injury, as well as orthotics. I see nothing in the claim file to
indicate that health care benefits were inappropriately awarded, given the presence of the
compensable foot injury.
Based on the foregoing, this aspect of the employer’s appeal is denied.
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Decision No. 1849/11
DISPOSITION
[46]
The employer’s appeal is denied.
[47]
Entitlement for the worker’s foot condition was appropriately granted by the Board.
[48]
The LOE benefits granted by the Board during the period from April 1 to
November 30, 2009 were appropriately granted to the worker.
[49]
Health care benefits prior to and since March 9, 2009 were appropriately awarded to the
worker by the Board.
DATED: October 12, 2011
SIGNED: J. Noble