Decision #23/09 - Type: Workers Compensation
Preamble
The worker sustained a right ankle fracture at work on March 13, 2007. The Workers Compensation Board (WCB) accepted responsibility for the claim and the worker received various types of benefits. The worker is currently appealing a decision that was rendered by Review Office to deny the costs associated with her proposed purchase of certain home exercise equipment. A file review was held to consider the matter.
On December 22, 2008, the appeal panel requested an opinion from a WCB physiotherapy consultant prior to rendering a decision on the issue under appeal. The opinion provided by the WCB physiotherapy consultant was forwarded to the worker for comment. On February 4, 2009 the panel met to discuss the case and rendered its final decision.
Issue
Whether or not responsibility should be accepted for the purchase of home exercise equipment.Decision
That responsibility should be accepted for the purchase of home exercise equipment, as suggested by the Workers Compensation Board’s Physiotherapy Consultant on January 7, 2009.Decision: Unanimous
Background
As noted in the preamble, the worker fractured her right ankle in a work related accident on March 13, 2007.
On October 9, 2007, a WCB physiotherapy consultant recommended an exercise program for the worker that was to be performed at a gym. The WCB subsequently provided the worker with a gym pass membership for a three month term, and in June 2008, an additional three month gym membership was authorized.
In September 2008, the worker asked the WCB to provide her with funds to purchase exercise equipment based on the rationale that she was sore by the end of her exercise program at the gym and therefore had a more difficult time getting home. She also thought that because it was getting colder outside, it would be difficult for her to leave her home.
In a decision dated September 23, 2008, the worker was advised by a WCB vocational rehabilitation consultant that the WCB would authorize a three month gym pass membership and six massage therapy sessions but not the purchase of exercise equipment. The worker appealed the decision to Review Office on September 25, 2008.
On October 8, 2008, Review Office agreed with the WCB’s vocational rehabilitation consultant that there was no entitlement to the cost of home exercise equipment. Review Office noted that the worker received in-clinic physiotherapy treatment, instruction on exercises, and a sponsorship in a gym following her right ankle injury. As such, Review Office did not find evidence to support that the worker required home exercise equipment. It pointed out that an orthopaedic specialist, in January 2008, reported that the worker did not have any significant response to physiotherapy and would continue to have a stiff right ankle. By applying policy 44.10.30.60, Practices Delaying Worker’s Recovery, Review Office was of the opinion that the worker had reached maximum recovery and therefore coverage for home exercise equipment would not be warranted.
On October 28, 2006, the worker appealed Review Office’s decision to the Appeal Commission.
A file review was held at the Appeal Commission on December 3, 2008, which was rescheduled to allow for the worker to submit a written argument. On December 4, 2008, the worker was advised by letter that the appeal panel would accept any written argument in support of her appeal and that her submission should be received at the Appeal Commission no later than December 12, 2008. No submission was received from the worker as of December 13, 2008.
On December 18, 2008, the panel met further to discuss the case and decided to obtain additional information from a WCB physiotherapy consultant pertinent to the issue under appeal. A response was later received from the consultant and was forwarded to the worker for comment. On February 4, 2009, the panel met again to discuss the worker’s appeal and rendered its final decision.
Reasons
Applicable legislation or policies
The Workers Compensation Act (the Act) provides guidance on a worker’s entitlement to medical aid benefits, as follows:
Provision of medical aid
27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.
The Worker’s Position
The worker’s position was set out in her Notice of Appeal of the Review Office decision to the Appeal Commission. It states:
“I have tried going to the gym. It is too painful. I can only exercise 10 mins at a time. There is no point going to the gym. I still need to exercise for my health. When I can at home this item is only needed now due to the accident. I can no longer go to the gym like other people. Can only exercise at home when I can.”
The worker also provided some photographs of a number of fitness or exercise machines that she felt would be of benefit to her.
Analysis:
In our review of the file, the panel was unclear as to what was intended when the WCB had previously authorized gym memberships and exercise programs. In particular, we were unclear as to whether these were specifically related to the worker’s right ankle injury or to assist the worker in reconditioning after a lengthy work absence, or for other purposes. Accordingly, the panel sought clarification from a WCB physiotherapy consultant who had made the earlier authorizations. He was asked to describe the purpose of the original authorizations, and as well, what, if any, home equipment would be appropriate in respect of the worker’s compensable injury.
In a memo to the panel dated January 7, 2009, the WCB physiotherapy consultant advised that the gym memberships were intended to deal with significant levels of deconditioning post-surgery, as noted during his examination of the worker on October 9, 2007. He felt that a home program would suffice after the worker’s September 2008 gym membership program.
As to a home based program, he notes that “ongoing exercise would include a combination of flexibility, strengthening and endurance exercises.” In response to the panel’s query “In your opinion, what type of home equipment, if any, would be suitable for the worker to manage her condition?” the physiotherapist replied as follows:
“Recommended equipment would include:
- Resisted tubing to strengthen the ankle invertors, evertors and dorsiflexors.
- A wobble board for performance of lower extremity strengthening and balance exercises.
- Adjustable ankle weight should also be provided. This provides variable resistance for strengthening of the leg and arm muscles.
- The worker should also be performing closed chain strengthening exercises as tolerated including heel and toe raises, partial wall squats and modified lunges.
- She should also walk for cardiovascular conditioning.”
In the panel’s view, the WCB physiotherapy consultant has identified specific home exercise equipment that is clearly directed at treatment of the worker’s compensable right ankle injury. The equipment includes resisted tubing, a wobble board, and adjustable ankle weights. The panel notes that this equipment is different from that sought by the worker. The panel, however, accepts and adopts the recommendations of the WCB physiotherapy consultant in respect of the appropriateness of his selected equipment, and finds on a balance of probabilities that this medical equipment is reasonable and is necessary to provide relief to the worker from an injury resulting from an accident, as set out in subsection 27(1) of the Act.
Accordingly, the worker’s appeal is accepted.
Panel Members
A. Finkel, CommissionerM. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Finkel - Commissioner
Signed at Winnipeg this 10th day of February, 2009