Decision #41/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to footwear or orthotics in relation to his compensable injuries. A file review was held on February 10, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to footwear or orthotics.
Decision
That the worker is not entitled to footwear or orthotics.
Decision: Unanimous
Background
The worker has an accepted 2001 claim with the WCB for injuries to both elbows and a secondary left knee injury. The compensable diagnoses are bilateral ulnar neuropathy and a left-sided medial meniscus tear. The worker also has other compensable WCB claims for injuries to his right knee that occurred in 1994 and 2000.
On May 25, 2015, the worker wrote to Review Office requesting reconsideration of the decisions made by WCB case management to deny responsibility for custom shoes that were prescribed for his compensable knee injuries. The worker noted that custom shoes were originally prescribed to offset the shock to his knees and that the WCB denied paying for the shoe prescription on the basis that he had a pre-existing supination problem. The worker indicated that to his knowledge, no supination problem was ever involved in the prescription. The prescription was prescribed due to his compensable knee injuries and not to some other problem.
In a decision dated June 18, 2015, Review Office determined that the worker was not entitled to footwear or orthotics in relation to the compensable accident.
Review Office noted in its decision that the first mention of custom footwear for the worker was based on a physiotherapy report dated June 26, 2009. The physiotherapist noted that the worker was using a cane on the wrong hand/side and that proper runners would help to control the "slight over supination" and would aid in shock absorbing if the runners had "proper cushioning."
Based on comments expressed by a WCB physiotherapy advisor on November 25, 2009 and on June 10, 2010, Review Office stated that over supination was the medical reasoning to justify orthotic or custom footwear for the worker. The term pre-existing referred to by the physiotherapy advisor was in reference to the worker's over supination. Review Office agreed that the worker's over supination was a pre-existing condition that was present prior to the compensable injury and/or was not medically accounted for in relation to the compensable injury.
Review Office also noted that when the worker provided the physiotherapist's comments to an orthopedic surgeon, it was understood by the surgeon that the physiotherapist was recommending "orthopedic inserts for his shoes" and that the surgeon was in support of the inserts. Review Office indicated that at no time did the surgeon provide reasoning as to how these were required as a consequence of the compensable left knee injury.
Review Office also referred to the comments made by a sports medicine physician on September 7, 2010. Review Office indicated that the physician did not provide a causal link to the compensable left knee injury but was simply stating that a motion of supination, in his opinion, had a possible side effect of aiding (along with many other issues and conditions) in the development of osteoarthritis. He stated that it would "predispose" a person, meaning, it does pre-exist and is a factor in the development of osteoarthritis. It was not causally linked to the compensable meniscal injury.
With respect to the comments made the sports medicine physician on September 5, 2014, that "Orthotics has improved his ambulatory function and would be considered as an ongoing part of his management," Review Office said the sports medicine physician did not elaborate as to what part of the ambulatory function was improved. If he was referring to the worker's over supination, then it was a pre-existing condition and unrelated to the compensable injury.
Review Office concluded that the worker required a good pair of shoes as recommended by his physiotherapist, orthopedic surgeon and sports medicine doctor, no different than how anyone else would require a good pair of shoes to aid in walking, running, exercising, etc. Review Office concluded that there was no causal connection between the worker's requirement for custom footwear or orthotics and the compensable injuries accepted by the WCB.
In August 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged to consider the appeal.
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 Board of Directors.
Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The WCB Board of Directors enacted WCB Policy 44.120.10 (Medical Aid) which allows for the provision of recommended devices including prosthetic devices. This 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.
The worker is appealing the WCB decision that he is not entitled to payment of footwear or orthotics in relation to his compensable injuries.
Worker's Position
The worker provided a written submission dated September 18, 2015, outlining his reasons for appealing the Review Office decision. His submission, provided in part, that:
This appeal refers to the question of whether WCB should accept responsibility for the costs of the shoes medically prescribed to offset the effects walking has on my compensable knee condition.
The contents of my WCB claims involve injury to both my knees that has resulted in a deteriorating circumstance to them that involves a history of shock relieving shoes being prescribed. Initially, there was a prescription from a specialist for which WCB stated it felt there was a pre-existing supination problem. No regard was given to the fact that no shoes were ever prescribed for it or that responsibility for the shoes still related my knee injuries, whether or not over supination might be a factor.
There was never any supination problem reported as a cause for the shoe prescription and my work injuries to my knees being the reason for the prescription went unanswered. Despite several attempts to have this addressed, WCB refused to respond to the issue, ensuring no opportunity for an appeal of anything other than the existence of a pre-existing condition. The issue of the prescription resulting from my knee injuries was left dormant by WCB while my knees continued to deteriorate.
The need for prescription shoes was addressed by my doctor last year and it was felt they would be helpful in improving my mobility. Along with this, slowing the deterioration of my knee injuries could also be one of the effects and shoes were again prescribed. The case worker originally decided to conduct an enquiry to determine WCB responsibility for the cost. This, however, only resulted in a decision that informed me I could now use the new prescription to appeal the old decision. I requested that Review Office conduct its review of the position adopted.
The June 18, 2015 decision of Review Office extrapolates a view point acquired through a web site review. However, the footwear in question was acquired as a result of a prescription to offset shock to my injuried knees, not internet data. Stating that I do "not have an altered gait" is, whether accurate or not, of no value as it does not consider what I do have, specifically, the osteoarthritis resulting from my knee injuries. Review Office limited its commentaries to exam room gait and "surgically repaired meniscal tear(s)" not being a cause. What the cause for the shoes is, the condition existing from my injuries, was not included as a part of its inaccurate and peculiar presentation.
Inclusion of ambulatory stability and the medical finding of improved ambulatory function were subjected to a declared lack of understanding. The decision did not reference an effort made to acquire clarity on the subject and insults the WCB 'enquire into and determine' mandate. A 'not clear to me' circumstance is an individual problem and not a valid or responsible platform for a review result.
As such, there is no basis to state there is no causal connection between my requirement for custom footwear and my compensable injuries.
Additionally, if over supination is present, it does not change the circumstance of the shoes being prescribed to reduce shock to the condition caused by compensable injury to my knees. The time line confirms that an over supination, in itself, did not cause any custom needs for my knees, osteoarthritis and deterioration with my knee injuries over time is the reason for the prescription.
The confirmation that the footwear is custom renders the view of them being no different than a good pair of shoes a contradiction. No one has shoes prescribed by a physician without a medical condition that warrants it. In omitting the osteoarthritis resulting from my injuries, Review Office failed to consider the medical cause of the prescription for custom shoes.
My shoe purchases prior to the prescription for the effects of my knee injuries were off the shelf and always of good quality. Still, my knees became increasingly problematic and it became necessary for custom footwear to be required for my compensable injuries.
They have a positive effect.
Employer's Position
The employer did not participate in this appeal.
Analysis
The worker is appealing the WCB decision that he is not entitled to footwear or orthotics. In order for the worker's appeal on this issue to succeed, the panel must find, on a balance of probabilities, that there is medical need related to the worker's compensable injuries. The panel considered all the related evidence on the claim files and the worker's appeal submission, but are not able to find, on a balance of probabilities, that the provision of footwear or orthotics are medically related to the worker's knee injuries. In considering this issue, the panel is bound by the Medical Aid Policy.
The panel notes that this issue dates back as far as 2009. It appears to have been raised initially by the physiotherapist who was treating him after the left knee surgery. In her first report, dated June 26, 2009, the physiotherapist notes:
Educ re: gait today (was using cane on wrong side) Also educ re: getting proper runners to help control slight over supination + (??) proper cushioning also for shock absorbing.
The worker's file was reviewed by a WCB medical consultant on August 12, 2009. With respect to the worker's left knee the consultant commented:
No restrictions appear to be required. Left knee arthroscopy of May 19/09 demonstrated a "fairly extensive horizontal tear of the medial meniscus" which was trimmed. "Very mild chondromalacia" of the lateral edge of the medial condyle was noted and was debrided. (It was noted in March 13 approval letter of [Dr. name] that "The WCB will not accept responsibility for any other arthroscopic treatments such as that directed at possible chondromalacia") At follow up apt. (June 5 09) with OS it was noted that "He may gradually resume activities as tolerated." Subsequent PT report of Aug 17 indicated a good outcome with normal gait, good ROM [range of motion], and improvements in flexibility and strength. It was noted specifically that objectively recovery was satisfactory. Advice to continue with a home program was noted. As noted previously, recovery from arthroscopic partial menisectomy is usually on the order of 6 weeks. In view of the lack of other significant findings at surgery, the positive reports from the surgeon and physiotherapist, and considering the time already passed, for recovery (3months+) it does not appear that there is a requirement for any restrictions regarding the left knee, in relation to workplace injuries/factors." (underlining added)
The treating physiotherapist provided a Discharge Assessment on August 17, 2009 which indicated that the worker had objectively recovered, his "gait no longer antalgic" and that ROM was close to full.
The panel finds that by August 17, 2009 the worker had objectively recovered with full ROM, normal gait and no change in function. The panel finds there was no basis under the Medical Aid Policy for the payment of orthotics or cushioned footwear at that time.
As to ongoing entitlement, the panel notes that in a memo dated November 25, 2009, the WCB physiotherapy consultant commented on the treating physiotherapist's June 26, 2009 recommendations:
The June 26, 2009, initial physiotherapy report indicates slight over supination. Over supination would not aggravate the pre-existing medial compartment right knee osteoarthritis.
The meniscal tears and diagnosis of the [2000 claim] claim is not related to the observed slight supination noted by the therapist. This supination would not delay the recovery. It would not place additional stress through the knee joints. Any increased forces would be absorbed by the soft tissues and joints of the foot.
On December 7, 2009, a sports medicine physician recommended, amongst other things, "some shock absorbing footwear to minimize the transmission of load through the medial compartments."
On June 10, 2010, a WCB physiotherapy consultant commented further regarding the worker's supination condition:
The June 2009, initial physiotherapy report indicated slight over-supination. This would indicate a slightly higher arch. The therapist did not mention the opposite side but this is usually seen on both feet as it is the natural resting position of that individual's foot. This is a slight variation out of the normal and would not affect the foot's ability to absorb ground impact forces. This is opposed to a rigid foot which could send forces up the leg to the knee and pelvis. A medial meniscus tear would not alter the biomechanics of the knee enough to result in compensatory supination of the foot. If anything this would result in pronation.
On June 30, 2011 a different treating physiotherapist noted that:
Pt. noted he does try to go for regular walks. He asked if a cushioned pair of shoes may be beneficial. Writer agreed that a good pair of walking shoes could definitely be helpful in making the activity more tolerable.
In response to the physiotherapist's June 30, 2011 note, a WCB case manager contacted the physiotherapist regarding her recommendations. The case manager's November 15, 2011 memo outlines his discussion with the physiotherapist. The memo indicates that the case manager asked the physiotherapist whether her recommendation for cushioned shoes (and other recommendations) were a medical necessity. The physiotherapist noted they were more for "general health, as opposed to his knees." The physiotherapist noted that that the shoes "might perhaps help in theory to improve his walking tolerance."
The panel finds that the medical information as of June 2011 does not provide a basis under the Medical Aid Policy for the payment of orthotics or cushioned footwear.
On May 1, 2014, the worker's family physician provided a prescription for "orthopedic footwear." The prescription noted "osteoarthritis knees." On September 5, 2014 the family physician noted that "The long term issues with his knees may be complicated, which therefore may be considered to be eligible for compensation in the long term." He advised that "Orthotics has improved his ambulatory function and would be considered as an ongoing part of his management."
The panel finds that the above correspondence from the family physician was general and provided no evidence on how the orthotics or footwear helped the worker or improved his ambulatory function.
In conclusion, the panel is unable to find the prescription for orthotics and footwear provided by the family physician meets the criteria provided under the Medical Aid Policy. The evidence does not establish that the provision of orthotics or footwear will likely improve function or minimize the chance of aggravating the worker's existing injury or of causing a further injury.
The panel acknowledges that the worker may at a future date be eligible for the supply of orthotics or special footwear in relation to his compensable injuries. This will depend on the worker's condition at that time and medical evidence.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 22nd day of March, 2016