Decision #62/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding his entitlement to a clothing allowance and custom orthotics. A file review was held on April 19, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's entitlement to a clothing allowance and custom orthotics has been correctly determined.

Decision

That the worker is entitled to additional costs in relation to special footwear on a one-time basis only.

Background

On June 25, 1998, the worker sustained a crush injury to his left foot in a work-related accident. His claim for compensation was accepted by the WCB and various types of benefits have been paid to the worker, which included a clothing allowance.

On July 21, 2016, Compensation Services advised the worker that:

The Workers Compensation Board adjusts the amount of the clothing allowance based on annual changes in the Consumer Price Index (CPI). The amount you receive will be adjusted on your next payment, to be issued December 2016, from $314.00 to $317.00.

Medical Aid Policy 44.120.30, Benefits Administration states, "assistance may be provided for additional costs associated with the purchase of clothing and footwear or other special clothing is required or must be replaced more frequently as a result of the injury".

The cost of your custom orthotics are independent of the footwear allowance and will be reviewed as required.

On September 14, 2016, the worker appealed the above decision to Review Office. The worker stated in his appeal submission:

I have been getting 4 pair of shoes yearly since 1998-1999 when I had my accident. Never before has anybody questioned my shoe allowance.

My shoes cost more as they are extra wide and deep, and frequently have to be ordered. I have to take the insole out so my insert will fit. Cheaper shoes don't allow you to take insoles out. My shoes have to have good support as I don't have good balance missing 2 1/2 toes and part of my foot. I can't wear a lot of water resistant boots or rubber boots - duck boots. We have rain, wet snow and my footwear takes a beating. I have to wear shoes in the house as slippers have no support. Therefore I need clean shoes for the house or if I go to other people's houses. I have tried wearing cheaper shoes and all I end up with is a sore foot and I limp more. I walk a lot as it is one of the few exercises I can do therefore my footwear breaks down. I dealt with [shoe store] in Wpg. They will explain how long footwear is good for before it breaks down. A work accident caused my problems. I was left disabled. I retired early because I couldn't take walking on cement at work. Therefore my pension was decreased. I was left disabled and there are a lot of things I have to pay for that if this hadn't happened I could do. Cutting my shoe allowance causes me to suffer mentally, physically, financially.

On November 15, 2016, Review Office determined that the worker's clothing allowance and entitlement to orthotics was correct.

Review Office indicated that the worker was provided with excessive benefits for his footwear by the WCB over the last 18 years, however, this was not in keeping with the Act or Board policy on such matters. Review Office noted that the error was corrected by Compensation Services in 2016 when it was identified.

Review Office said the WCB is responsible for the reasonable costs over and above the worker's expected or normal costs. This amount is limited and must be in keeping with entitlement as per certain sections of Board policy and the Act. Review Office noted that any additional costs for footwear as a consequence of the accident are compensated in the amount of the yearly clothing (footwear) allowance, as determined by the Board to be $317.00 per year, in addition to coverage and reimbursement for custom orthotics.

On December 20, 2016, 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 WCB Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

The Act provides that the WCB can provide medical aid to workers. Subsection 1(1) of the Act defines medical aid as including a broad range of services and equipment. Paragraph (f) of the definition states "any other goods and services authorized by the board."

Subsection 27(1) states:

"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."

Subsection 27(2), provides for clothing allowance entitlement:

In addition to other compensation provided by this Part, the board may allow to an injured worker who, because of the nature of an injury …wears a prosthetic device or orthotic device, an additional clothing allowance to compensate for the additional deterioration of clothes caused by the wearing of the prosthetic device or orthotic device.

Pursuant to the above statutory provisions, the WCB Board of Directors established WCB Policy 44.120.30, Support for Daily Living. The policy purpose notes that:

This policy outlines the general criteria for providing injured workers with assistance to engage in the activities required for daily living and summarizes the forms of assistance the WCB may provide.

The policy identifies the forms of assistance that can be provided to and for the benefit of injured workers. Paragraph 6 provides:

6. Clothing and Footwear

Assistance may be provided for additional costs associated with the purchase of clothing and footwear, including where footwear or other special clothing is required or must be replaced more frequently as a result of the injury.

The Administrative Guidelines to the policy provide, in part:

C. Clothing and Footwear

Eligibility

Eligibility for assistance with clothing and footwear is based on whether the worker incurs additional clothing and footwear costs as a result of the compensable injury.

Parameters

Assistance will be provided up to a maximum amount established by the WCB, based on standard clothing and footwear costs and the nature of the injury.

Administering Assistance

Where assistance is required on a one-time or short term basis, such as when a worker requires a different size of clothing in order to wear a cast, the WCB will reimburse the worker upon submission of receipts provided the costs are approved by the WCB under the applicable criteria.

Where assistance is required on a long-term basis, such as when special clothing or footwear is required or needs to be replaced more frequently because the worker wears a prosthetic/orthotic device or uses a mobility device such as crutches or a wheelchair, the WCB will provide an allowance.

This appeal deals with the worker's request for reimbursement for the purchase of four pairs of footwear each year.

Worker's Position

The worker was self-represented in this review.

In his written appeal, the worker expressed concern that his annual allowance for replacement of his shoes has been reduced. He disagreed with the WCB's reasons for reducing the allowance. He argued that shoes are not clothing and should not be covered under the clothing allowance.

The worker advised that he has been getting reimbursed for his shoes since he was injured. He said his shoes cost more because they are extra wide and deep. He said that he needs good shoes for his feet. He said that his shoes wear out quickly due to the amount of walking he does and the wear from the device. He noted in a letter dated September 13, 2004, the WCB accepted ongoing responsibility for medical treatment which includes medical visits, medication and shoes.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker is appealing the WCB decision which reduced his annual shoe replacement allowance. The issue before the panel is whether the worker's entitlement to a clothing allowance and custom orthotics has been correctly determined. The panel notes the worker's concern is in relation to the annual amount provided for the replacement of shoes. He is not appealing the amount of the orthotics coverage and does not speak to this second issue in his appeal. The panel therefore restricts its decision to the issue of the clothing allowance, or more specifically, the shoe replacement allowance.

The panel notes that the worker first received an allowance pursuant to WCB Policy 44.120.200, Clothing Allowance. This policy was rescinded effective October 1, 2000 and replaced by WCB Policy WCB Policy 44.120.30, Support for Daily Living.

In 2013, the Schedule under the policy provided an allowance of up to $615.00 in cases where the additional wear to clothing was for the lower body. In 2014, the schedule under this policy was administratively amended and the amount of allowance for clothing for lower limb injuries was reduced to $308.00 annually.

It appears that the worker was not informed of the change and continued to submit invoices for the purchase of four pairs for shoes, based on his understanding that he was entitled to reimbursement for four pairs of shoes. This occurred in 2013 and 2014.

File information indicates that in 2015 the worker sought payment for two pairs of shoes in May and two pairs of shoes in December, as he had in past years. Payment was made for the shoes purchased in May (invoice value $280.80) and was initially approved for the shoes purchased in December (invoice value $442.80). Subsequently, the WCB refused the worker's request for reimbursement of $442.80 but agreed to pay the annual approved sum for 2015 of $314.00.

It appears that the first time the worker was informed about the annual limit was in December 2015. In 2016, the worker appealed the decision to the Review Office and then to the Appeal Commission.

The panel finds that it is appropriate to allow the worker's appeal on this one occasion. The panel notes that the worker was not informed of the change to the Schedule and accordingly continued to follow the established practice of ordering four pairs of shoes each year into 2015 and submitting the invoices to the WCB. The panel finds that the WCB should pay the difference between the invoice amount and the annual allowance to the worker in 2015. Specifically $442.80 - $314.00 = $128.80.

In reaching this decision, the panel notes that the worker acted in good faith and was not informed of the Schedule. The panel also notes that the Schedule is not a published document and is not available for public access.

Given the unique circumstances of this case, the panel considers it reasonable to pay the invoices that the worker incurred in good faith. The panel finds that the new limit should apply to the worker effective 2016 as he was informed of the annual limit by the WCB by telephone and by letter.

The worker's appeal is allowed in part.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of May, 2017

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