Decision #20/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB")regarding the repair of his right hearing aid. A hearing was held on January 13, 2016 to consider the worker'sappeal.
Issue
Whether or not the worker is entitled to coverage for therepair of his right hearing aid.
Decision
That the worker is not entitled to coverage forthe repair of his right hearing aid.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for noise induced hearing loss. In April 2006, the worker was approved for coverage for bilateral hearing aids by the WCB. In May 2011, the worker was provided with two replacement hearing aids based on WCB guidelines.
On June 22, 2015, the worker advised the WCB that his right hearing aid broke in two. The worker explained that he lost his hearing aid for a day and then found it on the floor of his laundry room in front of the dryer. He said his hearing aid could have fallen out when he took his shirt off or it could have rolled out of his pants pocket. The worker said he placed the hearing aid back into his ear and it worked fine. When his ear became itchy, he hooked it with his finger to pull it out. One part of the hearing aid came out and the other part stayed in his ear.
On June 23, 2015, a hearing aid technician told the WCB that the worker's hearing aid came apart when he pulled it out of his ear. The worker did not relay any other information. There was a hole in the shell like it had been pressed too hard.
In a decision dated June 23, 2015, the worker was advised that the hearing aid repair was required due to accidental damage and that the WCB does not cover repair costs due to accidental damage. On July 16, 2015, the worker appealed the decision to Review Office.
On September 11, 2015, Review Office confirmed that there was no entitlement for coverage to repair the right hearing aid. Review Office found that Compensation Services provided the worker with the correct information that the damage, as noted in the file evidence, was not something the WCB would cover. The WCB was not responsible for replacing a lost or broken hearing aid, unless the reason for the needed repair fell within its normal use or wear and tear of the device. In this instance, Review Office was unable to determine that the repair costs were the WCB's responsibility. On September 19, 2015, the worker appealed the decision to the Appeal Commission and an oral 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 WCB's 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.
The WCB Board of Directors established WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy").
Worker's Position
The worker was self-represented. The worker outlined his reasons for appealing and answered questions from the panel.
The worker:
· described his routine of taking his hearing aids off each night, placing them in a secure container, provided by the hearing aid vendor, and placing the container on the clothes dryer.
· explained that one morning he went to put his hearing aids in and could not find his right hearing aid. He found it a day and a half later laying on the floor by the clothes dryer. He placed it in his right ear and it did not function properly. After about an hour, he removed it from his ear. As he did so the hearing aid split in half.
· advised that he does not recall stepping on the hearing aid and cannot explain how it was damaged. He advised that it did not look damaged when he picked it up off the floor and inserted it in his ear.
· paid the cost of the repair which was noted as $563.40.
· asked that the WCB reimburse him for the cost he incurred in fixing the hearing aid.
The worker acknowledged that he can get by with only his left hearing aid, but that his hearing is better with both aids. He also advised that he has a Class 1 driver's license and is required to have both hearing aids to drive a Class 1 vehicle. He acknowledged that he does not own a Class 1 vehicle and does not currently drive such a vehicle.
In answer to a question from the panel, the worker advised that his hearing has deteriorated. He advised that his hearing aids are nearly 5 years old and that he is likely to request replacement on the 5 year anniversary.
Analysis
The panel found the worker to be a credible and an honest witness and fully accepts the evidence he provided at the hearing.
The issue before the panel is whether the worker is entitled to coverage for repair of his right hearing aid which was broken while in his possession. After considering all the evidence, the panel finds, on a balance of probabilities, that the WCB should not bear the costs of the unexplained damage to the hearing aid for the reasons that follow.
The evidence on file is that the worker found his right hearing aid on the floor after it was missing for about a day and a half. He inserted the hearing aid into his right ear and used it for about an hour. The hearing aid was not functioning properly so he removed it. As he did this, it broke into 2 pieces. He was not able to explain how he lost it or how it broke.
The panel reviewed the Medical Aid Policy which deals with the provision, repair and replacement of prosthetic devices. While the WCB is not generally responsible for replacing a lost or broken prosthesis, Section 2(a) of the Medical Aid Policy provides, in part, that:
2.a. Medically Prescribed Treatments and Prosthetic Devices
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.).
...
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.
With respect to subsection 2.a.iv) the panel finds the loss of the hearing aid was not due to normal wear and tear. The facts are that the right hearing aid was damaged, by an unknown cause, when or after the worker found it on the floor of his home. The evidence does not establish that the damage was due to wear and tear.
Although the worker did not seek the provision of a back-up device, the panel considered whether the broken hearing aid and resultant loss of use impaired the worker's function, interfered with his activities of daily living or created a safety hazard for the worker. The panel questioned the worker about his reliance on the right hearing aid. He advised that while his hearing is better with both hearing aids, he can hear and function with only one hearing aid even though his hearing loss is worse in his right ear. He lives on his own and can carry out the activities of daily living, including operation of a motor vehicle, with only one hearing aid. The panel finds that the evidence does not demonstrate that the temporary loss of use of the right hearing aid impaired the worker's function, interfered with his activities of daily living or created a safety hazard.
After careful consideration of the policy, the panel is not able to find a basis to authorize the payment for repairs to the right hearing aid which was damaged by an unknown cause after he found it on the floor of his home. The worker's request for payment of the costs of the repair of his right hearing aid is declined.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerC. Devlin, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 27th day of January, 2016