The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was only entitled to two pairs of footwear per calendar year and one trip per calendar year to obtain the footwear. A file review was held on November 21, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to more than 2 pairs of footwear per calendar year; and

Whether or not the worker is entitled to more than 1 trip per calendar year to obtain footwear.

Decision

That the worker is not entitled to more than 2 pairs of footwear per calendar year; and

That the worker is not entitled to more than 1 trip per calendar year to obtain footwear.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a right ankle injury that occurred in the workplace on March 22, 1986. On October 20, 1997, the worker underwent right ankle arthrodesis surgery in relation to his compensable injury and has a permanent partial disability award for his fused right ankle. File records show that the WCB accepted responsibility for an ankle brace, custom orthotics and footwear required as a result of the fused ankle. Transportation costs for trips to Winnipeg for the worker to obtain the devices and footwear were also covered.

On May 10, 2013, the worker was advised that the WCB would be responsible for one trip per calendar year for him to be fitted for his yearly (spring/summer and fall/winter) footwear needs. The case manager noted that the latest medical report from the treating orthopaedic surgeon noted that there was little change with his ankle and there remained a solid fusion. As such, there was no concern for significant changes through the course of a year in which to warrant numerous travel arrangements. The decision was based on Section 27 of The Workers Compensation Act (the "Act").

On May 24, 2013, the worker appealed the decision to Review Office. The worker submitted:

Just recently, I travelled to Winnipeg to acquire one pair of shoes…staff informed me that the Workers Compensation Board would only supply me for one pair of Spring or Summer shoes…I decided to choose one pair of Summer footwear only knowing that it goes against my original settlement with the Workers Compensation Board.

…Compensation Services wanted me to choose my Fall/Winter footwear at this time. I feel the timing for this was not right, so I decided not to get the Fall/Winter pair this early in the season. It felt like as if I was being forced to select a pair of Fall/Winter footwear so early in the year and this is not how my previous arrangements were set in the past for selecting footwear. Records of my previous footwear selection arrangements in the past would help justify my concern. I picked up the Summer footwear on May 16, 2013…The pair of shoes I usually get do not last me very long because of the terrain and mud located in my region. When it rains the shoes get wet causing them to stink and they do not last very long after that. The structure of my ankle usually causes my shoes to warp to one side causing them to be uneven and unbalanced. In the past years, I use (sic) to get 2 pairs of shoes for Spring/Summer and 2 pairs for Fall/Winter. This usually requires me to travel once in the Spring and once again in the Fall for these selection of shoes. In December of every year I usually make an appointment to see [orthopaedic surgeon] for my injured right ankle. Now to my understanding, I feel that there has been an unauthorized alteration to my previous agreement with the Workers Compensation Board.

Based on the evidence on file, Review Office determined on July 23, 2013 that the worker did not require more than 2 pairs of footwear and more than one trip to obtain footwear per calendar year as a result of his compensable injury. Review Office stated that the worker's normal footwear expenses have been impacted by his compensable injury. It was reasonable for the WCB to provide entitlement to two pairs of footwear per calendar year to help with the potential increased costs. Review Office did not find that the compensable injury would necessitate entitlement to all footwear costs. Additional footwear beyond two pairs per year would be considered a normal living expense and the responsibility of the worker.

Review Office did not find that the worker required more than one trip to obtain his footwear. The worker had obtained footwear for many years since his injury and would be familiar with planning in advance for his future footwear needs. Review Office concluded that there was entitlement to two pairs of footwear only and coverage of costs associated with one trip to Winnipeg to obtain footwear per calendar year. On August 7, 2013, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of the Act. Provision of medical-aid services to injured workers is payable in accordance with subsection 27(1) of the Act which provides 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.

WCB Policy 44.120.10 Medical Aid (the “Policy”) sets out a coordinated approach to delivery of medical-aid services. As it relates to the provision of medically prescribed devices and related accessories, the Policy provides as follows:

2. Medically Prescribed Treatments, Devices and Their Related Accessories

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 prescription drugs, over-the-counter medical supplies, braces, prosthetic devices, wheelchairs, dentures, hearing aids, eye glasses, contact lens and other devices.

…

a. Medically Prescribed Treatments and Prosthetic Devices

i) The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) and standard prosthesis 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.

…

3. Expenses Incurred to Attend Compensable Medical Treatment

iii) All travel reimbursements should be based on the most cost-effective alternative and take account of the injured worker's medical functioning level.

Worker’s submission:

The worker provided a written submission to the WCB dated May 24, 2013. In it, the worker indicated that he felt that there was an "original settlement" or "previous agreement" with the WCB in past years whereby he would get two pairs of shoes for the Spring/Summer and two pairs for Fall/Winter. This required the worker to travel from his northern Manitoba community to Winnipeg once in the Spring and once again in the Fall for selection of the shoes. This was in addition to his yearly appointment in December to see his orthopaedic surgeon for follow-up regarding his right ankle.

The worker felt that the WCB's statement that it would only be responsible for one trip per calendar year to be fitted for the worker's yearly (Spring/Summer and Fall/Winter) footwear needs was an unauthorized alteration to his previous agreement with the WCB and that his benefits were slowly being taken away from him.

The worker advised that his shoes did not last him very long because of the terrain and mud located in his region. When it rained, his shoes got wet and they did not last long after that. The structure of his ankle caused his shoes to warp to one side and become uneven and unbalanced. The worker provided photographs of his feet taken on a flat surface which demonstrated the post-fusion alignment of his ankle and the condition of his footwear.

Analysis:

The first issue before the panel is whether or not the worker is entitled to more than two pairs of footwear per calendar year. In order for the worker's appeal on this issue to succeed, the panel must be satisfied that there is medical need related to the compensable injury for more than two pairs of footwear per year. We are not able to make this finding.

Information on file indicated that the worker had been attending the same specialty footwear facility for many years. At the facility, the worker would attend the foot clinic where he would receive a thorough fitting, which included measurement of his feet, checking for changes and observation of his walk/gait. The worker's shoe size remained the same each time and there were no custom modifications made to the shoes. Historically, the worker had received hiking boots, winter boots, casual footwear, runners, insulated rubber boots, Yaktrax (traction device for bottom of footwear) and protective waterproofing spray.

In the panel's opinion, the evidence does not support a medical need for more frequent replacement of footwear than has been established. The worker's shoe size has remained stable throughout, and the December 18, 2012 medical report from the orthopaedic surgeon indicates that there is little change in the worker's right ankle condition and that the fusion remains solid. We are of the view that two pairs of footwear per calendar year is sufficient, if chosen and worn appropriately.

With respect to the second issue regarding travel to obtain footwear, we see no compelling reason why more than one attendance per calendar year is required to ensure proper fit of the footwear. As indicated earlier, the worker's ankle condition is stable, so a once yearly in-person attendance should be sufficient. It is notable that the worker does not require custom modifications or alterations to his shoes. Further, while the worker has expressed reluctance to select both his Spring/Summer footwear and his Fall/Winter footwear at the same time, there is no reason why this cannot be done. There is no evidence that the selection of footwear is seasonally limited in the specialized facility where the worker purchases his footwear.

The panel notes that this decision should not be interpreted to mean that the worker is entitled to a special, separate trip to Winnipeg on a yearly basis, the sole purpose of which is to select footwear. The Policy directs that all travel reimbursements should be based on the most cost-effective alternative. If the worker is travelling to Winnipeg every December to see his orthopaedic surgeon, it would seem to make sense that he should also attend to his footwear needs at the same time. The travel should be combined for multiple appointments wherever possible. Of course, the specific circumstances for any particular year will vary, and we leave it to the case manager to determine the most cost-effective alternative at the time.

We therefore find that the worker is only entitled to two pairs of footwear per calendar year and only one attendance per calendar year to obtain footwear. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of January, 2014