Decision #55/12 - Type: Workers Compensation
Preamble
The worker is appealing the decisions made by Review Office of the Workers Compensation Board ("WCB") which determined that the WCB was not responsible to provide him with footwear for use with his custom orthotics or with a medical bed in relation to his compensable back condition. A hearing was held on April 18, 2012 to consider the matter.Issue
Whether or not the worker should be provided with footwear for use with his custom orthotics; and
Whether or not the worker should be provided with a medical bed.
Decision
That the worker should not be provided with footwear for use with his custom orthotics; and
That the worker should not be provided with a medical bed.
Decision: Unanimous
Background
The worker has an accepted claim with the WCB for a middle/low back injury that occurred in the workplace on October 23, 2002.
On October 3, 2011, the worker's treating physician reported that the worker needed orthotic shoe inserts and a medical bed for "chronic lower back pain with radiculopathy left leg."
In a decision dated November 2, 2011, a WCB case manager advised the worker:
"The WCB has approved 2 custom orthotics [health centre's name] on October 4, 2011.
The WCB will not approve the purchase of a medical bed. Your diagnosis and restrictions would not require the need for a medical bed.
In general, a good supportive mattress/bed is recommended for all people, and this is not a responsibility of the WCB."
In a second decision dated November 3, 2011 the WCB case manager advised the worker:
"Footwear was previously approved by your former Case Manager. However, I can find no rationale in support of this decision, nor any medical information or evidence which would support the need for footwear as a direct result of your back injury. Coverage will continue to be accepted for custom orthotics, which can be replaced approximately once every 2 years. Orthotics can be moved into any suitable footwear. It is everyone's responsibility to ensure that they purchase and maintain suitable footwear…"
On February 15, 2012, the case was considered by Review Office based on an appeal submitted by the worker in regards to the WCB decisions of November 2 and 3, 2011.
Review Office determined that the worker should not be provided with "medical shoes." Review Office referred to section 37, subsections 27(1) and 27(10) of The Workers Compensation Act (the "Act"). It noted that the WCB authorized the provision of orthotics to the worker in October 2011 and that the WCB would give consideration to replacing the orthotics in two year's time. Review Office said there was no evidence that the worker's accident-related footwear requirements could not be met by the use of orthotics in typical shoes. It determined that the WCB's responsibility in terms of the worker's footwear shall be limited to the periodic provision of orthotics.
Review Office also determined that the worker should not be provided with a "medical bed."
Review Office made reference to subsection 27(1) of the Act with respect to this issue. It stated: "Historically, the WCB does not provide beds to workers except in extreme circumstances (e.g., quadriplegia). The Review Office sees no reason to deviate from practice in this instance."
On February 20, 2012, the worker appealed Review Office's decisions to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The WCB Board of Directors enacted WCB Policy 44.120.10 (Medical Aid) which provides for the provision of recommended devices including prosthetic devices.
Worker's Position
The worker attended the hearing with his partner. He explained his reasons for appealing and answered questions from the panel.
Regarding his request for footwear to use with his custom orthotics, the worker advised that the WCB has on two previous occasions approved footwear at the same time as the new orthotics. The worker acknowledged that the WCB has already paid for two new pairs of orthotics but that he has not used them as he has not been able to purchase the new shoes yet, and the orthotics cannot be trimmed properly until that happens. The worker advised that he has used orthotics since his surgery.
The worker said his shoes were soft and worn so he needs new shoes. He advised that the representative of the orthotic firm recommended that he get new shoes. She advised him that new shoes would provide relief from his radiculitis. She recommended shoes with mesh for ventilation. The worker said that he needs shoes with a higher back because the orthotics are thick and raise his heel.
The worker said that he generally stays home. He does some yard work. He is not active. He said that he cannot afford to purchase new shoes.
Regarding the request for a medical bed, the worker advised that the WCB previously purchased a bed for him. He asked for a new bed because the mattress is too soft. He said he spends a significant part of his day in bed. He said that he did not require a medical bed before the accident.
In answer to a question, the worker acknowledged that he lived in Ontario for an extended period and that he left the bed in Winnipeg. He could not recall the dates that he was away.
In answer to a question about a warranty claim for the bed, the worker said he did not know if the bed had a warranty. He said he never saw any paper work regarding the bed.
The worker said that the bed which the WCB bought was too small. He wished to replace it with a queen sized unit. He advised that he cannot afford to purchase a new bed.
Analysis
Issue 1: Whether the worker should be provided with footwear for use with his custom orthotics.
For the worker's appeal to be successful, we must find that the worker needs new footwear as a result of his compensable condition. We were not able to make this finding.
We note that in 2011 the WCB authorized the purchase of 2 pairs of orthotics for the worker. We find that the purchase of the orthotics is authorized pursuant to WCB Policy 44.120.10, Medical Aid, in that they are required as a result of his compensable injury.
The worker's orthotics were custom made for the worker's foot. The orthotics are made to insert into shoes or runners. The worker's current runners are in fact a brand name runner that did not require modifications to accommodate the worker's custom orthotics, outside of pulling out the removable insoles. The evidence does not indicate that the replacement of the worker's footwear is due to the compensable injury.
The purchase and replacement of footwear is considered a normal living expense and is the responsibility of workers. Therefore the panel finds that the worker does not require specific footwear related to his compensable back injury.
The worker's appeal on this issue is dismissed.
Issue 2: Whether the worker should be provided with a medical bed.
For the worker's appeal to be successful, the panel must find that a medical bed is required as a result of the worker's compensable injury. We were not able to make this finding.
At the hearing, the worker indicated that the WCB previously purchased a bed for him. He said the bed is now too soft and interferes with his sleep. He believes the WCB should provide a replacement. He noted that his physician prescribed a medical bed for his chronic lower back problems and radiculopathy.
File information indicates that the WCB purchased a bed for the worker in 2007. The approval for the purchase was given after a home assessment was conducted by a WCB occupational therapist. The WCB agreed at that time that the worker should be provided with a firm mattress to help alleviate his symptoms. The WCB purchased a double extra long extra firm bed with mattress for the worker in September 2007.
File information indicates that the worker moved to Ontario in October 2007 and did not return until October 2008. At the hearing, the worker acknowledged that he left the province and that he did not take the new bed with him.
Considering the above evidence we find that it is not appropriate for the WCB to provide a replacement bed for the worker at this time. The bed provided in 2007 was an extra firm model. The bed was used by the worker for slightly over 4 years. This evidence is not consistent with the worker's evidence that the bed is too soft.
The worker's appeal is dismissed.Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 25th day of April, 2012