Decision #15/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision of Review Office of the Workers Compensation Board ("WCB") that no responsibility would be accepted for the replacement of his lost hearing aid.
A file review was held on December 6, 2012 to consider the matter.
Issue
Whether or not the worker is entitled to the replacement of his lost hearing aid.Decision
That the worker is not entitled to the replacement of his lost hearing aid.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for noise induced hearing loss in both ears.
On July 17, 2008, the WCB was advised that the worker had lost his right hearing aid at work and a request was made by the hearing centre to cover the cost of a replacement hearing aid.
On July 23, 2008, the worker was advised that the WCB did not cover lost or damaged hearing aids. The worker appealed the decision to Review Office.
In a decision dated September 10, 2008, Review Office stated the WCB would pay for the repair or replacement of personal appliances and clothing if the damage or loss of the personal appliance or clothing was a consequence of a compensable accident and the accident caused either a personal injury or damage to an artificial limb. There were no provisions in The Workers Compensation Act (the "Act") that would allow the WCB to replace a lost hearing aid where there had not been a workplace accident. Based on these factors, the worker was advised that no responsibility would be accepted for replacement of his hearing aid.
On November 27, 2008, the Worker Advisor Office requested Review Office to reconsider its decision based on the following argument:
"Although the Review Office has concluded that there is no provision that would allow the board to replace a lost hearing aid unless it is connected to a compensable accident, paragraph 2(a)(ii) of policy 44.120.10 allows the board to provide a backup where the loss of the hearing aid would prevent a worker from functioning well in employment or if it creates a safety hazard. I request that Review Office reconsider its previous decision and agree to provide a backup hearing aid."
In a decision dated January 15, 2009, Review Office confirmed that no responsibility should be accepted for a replacement hearing aid. Review Office referred to Board Policy 44.120.10 - Medical Aid. It stated that subsection (ii) of the policy specifically referred to prostheses and was not applicable in this case when considering the replacement of a lost hearing aid. Review Office referred to subsection (iv) of the policy and stated that this subsection allowed for the replacement of hearing aids after a period of time when the hearing aids are no longer meeting the needs of the worker. It did not allow the WCB to replace a lost hearing aid. Review Office indicated that it was not the practice of the WCB to pay for a lost hearing aid unless the loss was a consequence of a compensable accident, and the accident caused a personal injury. Review Office also stated:
"There is medical evidence of hearing loss going back to 1998. The worker likely had some hearing loss even prior to 1998. The worker was functioning in his employment prior to receiving hearing aids in 2007. There is no evidence on file to suggest that the loss of one hearing aid is impacting his ability to function in his employment."
On October 25, 2012, the Worker Advisor Office requested reconsideration of Review Office's January 15, 2009 decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation and Policy:
The panel must decide this appeal within bounds of the provisions of the Act and policies made under that Act.
Section 27(1) of the Act provides that the WCB “…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.”
In accordance with the Act, the WCB Board of Directors established WCB Policy 44.120.10, Medical Aid. This policy deals with the provision of medical aid services to workers.
Worker’s Position:
The worker was represented by The Worker Advisor Office in bringing his appeal from the Review Office decision of January 15, 2009.
It was submitted that the WCB should be responsible to replace the worker’s lost right hearing aid on the basis that it would be a safety hazard for the worker to perform his duties with the use of only one hearing aid. The advocate relied upon the provisions of the WCB’s Medical Aid Policy which permit the WCB to provide a backup device when it believes the loss of the original prosthesis would prevent a worker from functioning well in his employment, or interfere in his activities of daily living by creating a safety hazard.
Employer’s Position:
The employer did not take a position.
Analysis:
The worker is seeking the replacement of his right hearing aid. The Act provides that the WCB may pay for medical aid that it considers necessary to cure and provide relief from an injury.
The Medical Aid Policy provides that, in order to minimize the impact of workers’ injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices, including hearing aids. In section 2(a), the policy sets out that:
ii) The WCB may provide a backup device when it believes the loss of, or damage to, the original prosthesis would prevent a worker from functioning well in his or her employment, or interfere in his or her activities of daily living by reducing mobility, creating a safety hazard, or by preventing him or her from performing basic activities (eating, dressing, etc.).
It is this provision that the worker’s advocate relies upon, arguing that the worker’s lost right hearing aid was essential for the worker to clearly hear instructions and various alarms in the workplace.
The issue before the panel is whether the worker is entitled to replacement of his lost right hearing aid. The evidence on file is that the worker’s right hearing aid became dislodged when he removed his hard hat at work, and that, although a search was conducted, he was unable to find it. The worker's advocate states that the worker requires replacement of the hearing aid for safety reasons.
While the WCB is not generally responsible for replacing a lost or broken hearing aid, there is discretion under section 2(a)(ii) of the Medical Aid Policy to provide a replacement or backup device where the loss of the original prosthesis would create a safety hazard.
In this case, we have no evidence that the loss of the worker’s right hearing aid created a safety hazard or in any way prevented the worker from functioning well in his employment. The facts before us are that when the worker lost his right hearing aid, the worker still had a functioning and effective hearing aid in his left ear. The panel finds that the use of one hearing aid would allow the worker to properly hear instructions and workplace alarms. The panel notes that it found no other safety issues related to the loss of one hearing aid.
We therefore find on a balance of probabilities that the worker is not entitled to replacement of his lost right hearing aid.
Panel Members
K. Dyck, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 30th day of January, 2013