Decision #26/14 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") that he was not entitled to the costs associated with accessories for his hearing aids or for the associated travel expenses. A file review was held on February 10, 2014 to consider these matters.Issue
Whether or not the worker is entitled to accessories for his hearing aids; and
Whether or not the worker is entitled to mileage to have his accessories repaired.
Decision
That the worker is not entitled to accessories for his hearing aids; and
That the worker is not entitled to mileage to have his accessories repaired.
Decision: Unanimous
Background
The worker has an accepted claim with the WCB for noise induced hearing loss. In 2002, the WCB provided the worker with the costs associated with bilateral hearing aids. In 2006, the worker was provided with the costs associated with replacement hearing aids.
In a letter to the WCB dated May 4, 2011, a hearing instrument specialist reported that the worker was having difficulties with his current hearing aids and that he required the following devices:
"…the provision of two new digital ear level instruments with advanced noise, feedback reduction, blue-tooth connectivity technology for use with telephones and television. The use of a "Sound Recover" program will allow for otherwise un-aidable high frequencies to be shifted to an aidable area not accessible with the previous technology. The use of an ear level RIC device (receiver in the ear) will provide considerably more useable gain without feedback with more useable gain in the high frequency speech area. "
On May 9, 2011, the worker asked the WCB to pay for travel expenses that he incurred to attend a hearing facility in Winnipeg for his hearing aid difficulties (the worker's residence is in rural Manitoba).
On May 10, 2011, Rehabilitation and Compensation Services advised the worker that he was not entitled to traveling expenses for his trips to Winnipeg as there was a hearing facility that came to his home town on a monthly basis which provided servicing and adjustments of hearing aids. This was in accordance with WCB Policy 44.120.10 Expenses. This decision was also confirmed to the worker in a letter dated July 13, 2011.
The worker was also advised on May 10, 2011 that Rehabilitation and Compensation Services had reviewed the recommendations by the hearing instrument specialist and determined that he was entitled to coverage of two hearing aids ordered from the WCB Authorized Product List. The coverage was only for the hearing aid described on the list and did not include coverage of any options or accessories.
On August 16, 2011, the worker appealed the WCB's decision to deny payment of travelling expenses to Review Office.
On August 24, 2011, Review Office determined that the worker was entitled to reimbursement for travel expenses to attend a hearing centre in Winnipeg. Review Office indicated that the worker made compelling arguments as to why he should continue to attend the hearing centre that had provided and maintained his hearing aids since 1996. The worker said he was happy with the service provided and did not wish to switch to a part-time facility.
Review Office further stated:
"…the overriding principle to be considered when determining entitlement to travel expenses is the reasonableness of the costs being incurred. In [the worker's] case, Review Office finds that the information on file establishes that it is reasonable for him to continue attending the hearing centre where he has received satisfactory assistance for over the past 15 years, and that (sic) should be entitled to reimbursement for his travel expenses."
On April 4, 2013, Rehabilitation and Compensation Services advised the worker that the travel he incurred on March 7, 2013 and March 21, 2013 was for the maintenance of an accessory that was not covered by the WCB. As his travel was not related to the adjustment and care of his
hearing aids or a medical appointment related to his hearing loss, the request for travel reimbursement was denied.
On April 15, 2013, the worker appealed the April 4 decision to Review Office. A copy of the worker's submission was provided to the employer and the employer's response is on file dated May 6, 2013. On May 15, 2013, the worker responded to the employer's submission.
On June 6, 2013, Review Office determined that the worker was not entitled to accessories for his hearing aids and that he was not entitled to mileage to have the accessories repaired. Review Office was of the view that the bluetooth connectivity, the advanced noise feedback reduction and sound recover program were not necessary in regards to having his hearing aids function properly. Based on this finding, Review Office found that mileage to repair the accessories would not be covered. Review Office acknowledged that the accessories the worker had for his hearing aids were useful options to the worker but unfortunately, there were no provisions within the Act to cover the accessories. On November 20, 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 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 (the "Medical Aid Policy").
The worker has an accepted claim for hearing loss. The worker is seeking confirmation that he is entitled to accessories for his hearing aids and to mileage to have his accessories repaired.
Worker's Position
In a submission dated November 25, 2013 attached to the worker's appeal form, the worker indicated that in 2011 the WCB approved the purchase of new hearing aids which included TV-Dex and Bluetooth features. He advised that the TV-Dex unit failed. He attended his hearing aid specialist's premises for repair under warranty. He sought reimbursement of travel costs incurred in dropping-off and retrieving the device. The WCB denied the request for reimbursement on the grounds that the unit was not related to the care of the Hearing Aids or medical appointment related to hearing loss, and the failed unit was considered an accessory.
The worker wrote that:
"In considering this appeal, it is requested that consideration be given to the following:
a) this accessory was recommended by a qualified Hearing Instrument specialist resulting from further deterioration of my hearing.
b) this accessory is included on the most recent WCB approved product list.
c) WCB approved of the purchase and paid for the Hearing Aids.
d) This the best addition to my Hearing Aids since I began wearing them. Now I can enjoy educational and entertainment programs and sports."
In a letter dated January 27, 2014 the worker advised that since his November 25, 2013 submission he has learned that the TV-Dex unit was provided on a complimentary basis and was not purchased by the WCB.
Employer's Position
The employer provided a written submission to the Appeal Commission dated December 17, 2013. The employer advised that it supports the Review Office decision of June 6, 2013. The employer noted:
"Although the hearing aid accessories listed by the worker were recommended by his Hearing Instrument Specialist, and may add additional convenience, they are not within the provisions of the Act with respect to necessity and proper functionality…
It is our understanding that the WCB approved product list for hearing aids does not include the TV-Dex accessory and covers hearing aids only. Therefore, the statement made on Page 2 of the worker's submission (b - this accessory is included in the most recent WCB approved product list) is inaccurate and should not be considered as part of the appeal."
Analysis
In addressing the issues in this appeal, the panel finds that the Medical Aid Policy applies. This policy specifically deals with the purchase of hearing aids. Section 2 of the Policy states "To minimize the impact of worker's injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended … devices, including …hearing aids."
Subsection 2(a.)(iv) of the Policy states that "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." (highlighting added)
The panel interprets the Policy as allowing the WCB to purchase devices and accessories, where the device and accessories minimize the impact of the worker's injuries and encourage recovery and return to work.
There are 2 issues raised in this appeal.
1. Whether the worker is entitled to accessories for his hearing aid?
For the worker's appeal of this issue to be successful, the panel must find that the accessories which the worker received when he received his new hearing aids were authorized under the Policy. The panel is not able to make this finding.
In this case, the panel is not able to find that the accessories, including TV-Dex and Bluetooth, were authorized under the Policy. These accessories were provided on a complimentary basis by the manufacturer and were not specified, authorized or paid for by the WCB. The panel finds that these accessories are not authorized under the Medical Aid Policy as they do not, in this case, support a return to work. The accessories are for the comfort and convenience of the worker but are not required for the proper function of the hearing aids. The worker's appeal of this issue is dismissed.
2. Whether the worker is entitled to mileage to have his accessories repaired?
Given the panel's decision on the first issue, the worker is not entitled to mileage to have his accessories repaired. The accessories were not specified, authorized or purchased by the WCB, accordingly the WCB is not responsible for maintenance and travel related to maintenance of the accessories.
The worker's appeal of this issue 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 12th day of March, 2014