Decision #20/14 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to financial coverage for battery cells in excess of 60 per hearing aid per year based on WCB policy. A hearing was held on January 27, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to financial coverage for battery cells in excess of 60 per hearing aid per year.

Decision

That the worker is entitled to financial coverage for battery cells in excess of 60 per hearing aid per year.

Decision: Unanimous

Background

In July 1999, the worker filed a claim with the WCB for bilateral noise induced hearing loss. His claim for compensation was accepted and the worker was provided with the costs associated with two hearing aids and associated battery cells.

On June 21, 2011, the WCB approved two replacement hearing aids ordered from the WCB's Approved Product list. The worker obtained the two hearing aids from the list.

On September 10, 2013, initial adjudication advised the worker that the WCB had implemented a change regarding coverage of hearing aid batteries. As of May 1, 2013, the WCB would cover a maximum of 60 batteries per hearing aid, per year, at a cost not exceeding $1.25 per battery. The WCB advised the worker that any expenses over and above this amount or quantity would not be covered. The worker disagreed with the decision and an appeal was filed with Review Office.

On October 31, 2013, Review Office determined that the worker was not entitled to financial coverage for battery cells in excess of 60 per hearing aid per year. Review Office noted that the WCB had reviewed their practices and after research into different aids, battery cell models, shelf life, etc. decided to change their practices by imposing a limit on the number of battery cells that it would financially accept. While it acknowledged that 60 battery cells were insufficient for the worker's needs, Review Office indicated that it was bound by the new practice. On November 20, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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) 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. Subsection 27(11) provides that the WCB may fix the fees and charges for medical aid.

The WCB Board of Directors enacted WCB Policy 44.120.10, Medical Aid, pursuant to which the WCB enacted the Hearing Aid Provider General Guidelines.

The worker has an accepted claim for hearing loss. The worker is seeking financial coverage for battery cells in excess of 60 per hearing aid per year.

Worker's Position

The worker was self-represented at the hearing. He explained his reason for appealing and advised that:

  • he has worn hearing aids in both ears for approximately 15 years.
  • his current hearing aids are two years old and were approved by the WCB.
  • due to his work duties, he wears hearing aids that fit inside his ears.
  • the hearing aids use a size 10 battery which is a small battery with a short life span.
  • a representative of the hearing aid manufacturer advised by letter that the common life span for a size 10 battery is 2-3 days.
  • the average lifespan for his batteries is approximately 4 days and he uses approximately 90 batteries per hearing aid each year.
  • the WCB had paid for this usage for many years.
  • he received a letter from the WCB dated September 10, 2013 advising that the WCB has implemented a change regarding coverage of hearing aid batteries and advised that as of May 1, 2013 the WCB will cover a maximum 60 batteries per hearing aid per year.

The worker explained that the nature of his work requires that his hearing not be interrupted, resulting in the use of approximately 90 batteries per hearing aid each year. He described his job duties and his work environment.

Employer's Position

The employer was represented by its Regional Safety Coordinator.

The employer representative confirmed the worker's job duties. He advised that it is necessary that the worker's hearing not be interrupted while performing his duties. He indicated that the worker is often involved in dangerous situations and that loss of hearing raises a safety issue for the worker and employer. As the employer's safety officer, he supported the worker's request.

Analysis

The issue before the panel is whether the worker is entitled to receive financial coverage for battery cells in excess of 60 per hearing aid per year.

For the worker's appeal to be successful, the panel must find that the worker's request is reasonable and consistent with WCB Policy. The panel was able to make this finding.

In making this decision the panel notes the following:

  • the WCB approved and paid for the worker's current hearing aids in 2011.
  • by letter dated June 21, 2011, the WCB advised the hearing aid provider that it will continue to pay expenses for maintenance of hearing aids and batteries.
  • the worker's historical use of batteries is approximately 90 batteries per hearing aid per year.
  • the WCB has paid for approximately 90 batteries per hearing aid per year, prior to its adoption of its new hearing aid provider guidelines.

The panel also notes that the authority cited for reducing the number of hearing aids that it will pay for in the worker's case is the Hearing Aid Provider General Guidelines. The Guidelines state that:

8. Battery Cells

The WCB will accept financial responsibility for battery cells provided to Injured Workers up to a maximum cost per battery cell as outlined in Schedule "A". The Service Provider will not send battery cells to an Injured Worker without first receiving a request from the Injured Worker for battery cells. The WCB reserves the right not to accept financial responsibility for shipped battery cells that were not requested by the Injured Worker. All battery cells shall have an appropriate shelf life consistent with the requirements of the Injured Worker and supply of battery cells provided.

Appendix "A" (Schedule "A") to the Guidelines provides, in part, that a maximum of 60 batteries per aid shall be funded per year.

The panel has several observations regarding the WCB's Guidelines and Appendix "A":

  • Firstly, the Guidelines is an administrative document and as such is not binding upon the Appeal Commission in making a decision on this appeal but has been considered by the Appeal Commission.
  • Secondly the Guidelines apply to the services offered by Hearing Aid Service Providers. It does not apply directly to a worker's request for coverage or determination of a worker's entitlement. Entitlement should be based upon the reasonable demonstrated needs of the worker and in accordance with WCB's Medical Aid Policy.
  • Thirdly, the Guidelines were established in 2013 and may well be appropriate for hearing aids dispensed after that date. However, they should not apply retroactively to the worker's case. This is especially so because the WCB approved the worker's hearing aids just two years earlier and has paid for the batteries since he acquired it.

The panel finds the worker's use of approximately 90 batteries per hearing aid per year to be reasonable given the worker's hearing loss and employment duties. The panel attaches significant weight to the information provided by the manufacturer's representative, which indicates that the common life span of a size 10 battery is two to three days. The worker's experience is that the batteries have a life span of four days and hence he uses only 90 batteries per hearing aid per year. At limiting battery refunds to 60 batteries per year, the Guidelines, in this case, result in only partial coverage of the worker's loss, and would not allow for the hearing aids to be used for the full employment year.

The panel is satisfied that the payment for additional batteries in this case is consistent with WCB Policy 44.120.10, Medical Aid, and is necessary for the worker to perform his employment duties. The panel, therefore finds, that the worker is entitled to financial coverage for battery cells in excess of sixty per hearing aid per year. The WCB should cover the worker's request as demonstrated by his use.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 12th day of February, 2014

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