Decision #161/07 - Type: Workers Compensation
Preamble
A hearing was held on October 17, 2007 at the worker’s request.Issue
Whether or not the worker is required to provide the WCB with medical documentation to support his entitlement to footwear and orthotics after January 6, 2006.Decision
That the worker is required to provide the WCB with medical documentation to support his entitlement to footwear and orthotics after January 6, 2006.Decision: Unanimous
Background
On October 4, 2000, the worker reported injuries to both his ankles and feet which he related to his employment as a hog loader. The claim was initially denied by primary adjudication and Review Office on the grounds that they were unable to establish that the worker’s bilateral ankle and feet difficulties, diagnosed as achilles tendonitis and plantar fasciitis, arose out of and in the course of his employment. The worker’s union representative appealed the decision to the Appeal Commission and on November 26, 2001, the majority appeal panel accepted that the worker did sustain an accident that arose out of and in the course of his employment. For complete details of the case leading up to the panel’s decision, please refer to Appeal Commission Decision No. 146/01.
On July 26, 2002, a WCB case manager advised the worker that he was entitled to two pairs of footwear per year. The letter stated “You will be allowed to use your discretion as to whether the two pairs of footwear will be leisure, or work related, or a combination of both.”
On January 6, 2006, the worker was advised that the WCB was unable to authorize further benefit entitlement to orthotics, footwear and physiotherapy treatments without appropriate medical evidence to support an ongoing cause and effect relationship to his 2002 compensable injury. The case manager pointed out that the last medical report of February 2004 reported intermittent heel pain with respect to the worker’s plantar fasciitis and achilles tendonitis. In March 2005, the WCB received a physiotherapy report with limited information pertaining to the worker’s heels and ankles. On January 5, 2006, a WCB medical advisor felt there was no objective medical evidence to confirm an ongoing cause and effect relationship between his current condition and 2002 compensable injury or an aggravation on a prior condition.
On January 31, 2006, the worker appealed the above decision to Review Office. He stated it was his understanding that two pairs of footwear and custom made orthotics were to be made available to him every year without exception. The worker noted that he was reimbursed for only one pair and not the second pair.
In a February 15, 2006 decision, Review Office determined that the worker was not entitled to further footwear and an orthotic until there was medical evidence to support a cause and effect relationship to his compensable injury. Review Office stated that in accordance with subsection 19(1) of The Workers Compensation Act (the Act), the WCB had the jurisdiction to request medical information in order to render a decision regarding the worker’s entitlement to compensation. In this particular case, the WCB withheld compensation while awaiting this information. With respect to the worker’s argument that he is entitled to footwear every year without exception, Review Office stated that nothing in subsection 60(1) of the Act prevents the board from reconsidering from time to time any matter that had been dealt with or from rescinding, altering or amending any decision or order previously made or making any further or supplementary order. On August 31, 2007, the worker disagreed and appealed to the Appeal Commission.
Reasons
This case deals with a very narrow issue, being whether the worker needs to provide supporting medical documentation to the WCB, in order to access footwear and orthotics paid for by the WCB, after January 2006.
The worker’s position:
The worker argues that in 2002, he was promised two pairs of orthotics per year because of his compensable foot conditions, and that a WCB staff member advised him that the “two pairs per year” was in accordance with WCB policy. The worker did indeed get orthotics for the next few years, but was then told that his file was under review, and that continuing payments for orthotics needed to be medically justified. The worker advises that there was no basis for the WCB to change its mind in 2006, and now require medical evidence showing that his compensable injury still required orthotics. The worker’s position is that the 2002 commitment to two pairs of orthotics per year was a permanent commitment.
In response to questions from the panel, the worker advised that he still has foot difficulties, but has not seen a doctor specifically about his feet in recent years, and has not had a doctor advise him on the issue of orthotics. The worker acknowledges that the WCB has encouraged him to speak to a doctor of his choice about this issue, and that they would then pay for a medical report from that doctor. The worker suggests that the WCB should get a doctor for him.
Legislation:
Panels of the Appeal Commission are bound by the Act and any policies passed by the WCB Board of Directors.
Provision of medical aid is covered in WCB Policy 44.120.10. It provides, in part, that:
2.a. Medically Prescribed Treatments and Prosthetic Devices
i) The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) and standard prostheses when required by reason of a compensable injury, and the treatment or device is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury.
…
iv) The WCB will cover the costs of repair, replacement and maintenance of devices and their accessories (for normal wear and tear given the individual’s lifestyle) so long as there is medical need, that need is related to the compensable injury and the use of the device continues to be beneficial.
Analysis:
The WCB’s medical aid policy is clear in its wording that the provision of devices such as orthotics are not “open-ended,” but rather will be paid for “so long as there is medical need, that need is related to the compensable injury and the use of the device continues to be beneficial.”
The panel finds that this policy gives the WCB an oversight role – once it has agreed to cover the costs of a device, it has the capacity to check on the evolving medical status of an injured worker and to determine whether the three criteria of continued funding are still in play -- continuing medical need, an ongoing relationship to the original compensable injury, and still beneficial.
As such, the panel finds that the WCB does indeed have the right to seek medical evidence from time to time, in order to adjudicate continuing coverage of the worker’s orthotics, and to decline to pay for same in the absence of supporting medical evidence. The worker’s position of a permanent or life-long grant of orthotics is not supported by WCB policy.
Further, the panel notes that the WCB has made continuing requests of the worker to speak to a doctor of his own choosing regarding his feet and the need for orthotics (following which the WCB would seek and pay for a medical report), but these requests have not been followed through by the worker. The panel notes that the worker lives in a large urban centre where there is ready access to physicians, and that the medical documentation can and could have been provided by a general physician. The panel also notes that the worker has attended walk-in clinics, and is familiar with how to access the healthcare system. Based on this information, the panel finds that the WCB’s general practice of having workers deal with their own medical practitioners and then seeking medical reports is not unreasonable in this case, and that it was and is appropriate for the WCB to ask the worker to provide WCB with medical documentation to support his entitlement to footwear and orthotics after January 6, 2006.
Accordingly, the panel denies the worker’s appeal.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 4th day of December, 2007