The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that he was not entitled to custom made footwear and the amount of his footwear allowance was correct. A hearing was held on October 26, 2017 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to custom made footwear; and

2. Whether or not the worker's footwear allowance is correct.

Decision

1. That the worker is entitled to custom made footwear as indicated herein; and

2. Given the decision that the worker is entitled to custom made footwear, this issue is considered moot.

Background

On March 26, 1972, the worker caught his foot in a conveyor belt which led to a left below the knee amputation. The worker was later diagnosed with a Class II neurosis, right foot metatarsalgia with callus formation over the first metatarsophalangeal ("MTP") joint, arthritis of the first MTP joint and a right ankle fracture for which the WCB accepted responsibility.

Various types of benefits have been paid by the WCB including, but not limited to, a permanent partial impairment award and the cost of orthotics/fittings.

On February 9, 2016, a WCB medical advisor was asked to review the claim file at the request of the case manager, as the WCB had received an invoice for 3 pairs of footwear. On February 12, 2016, the WCB medical advisor stated:

It is noted that [worker] has a below knee amputation on the left and wears a prosthesis. He uses a custom molded insole in the right shoe.

The Feb 1 2016 invoice from [vendor ("MS")] apparently is for [manufacturer ("AE")] brand shoes/boots costing $999.95 and $664.95 respectively. These are not custom made orthopedic or pedorthic shoes, but rather hand made dress shoes and boots. The [AE] website describes their shoes as "the finest men's dress and casual shoes available featuring American styling and fine craftsmanship". [The worker] may elect to wear such shoes but there is no specific requirement for these shoes/boots in relation to the compensable conditions.

The [AE] shoes/boots are not required for treatment related to the ci (compensable injury) and are not likely to specifically improve [the worker's] function.

In a letter dated February 19, 2016, a senior case manager advised the worker that the WCB was not able to accept financial responsibility for the cost of custom made AE shoes and boots as there was no specific requirement for these shoes/boots in relation to his compensable condition. The case manager noted that footwear was a provision under WCB policy 44.120.40, Support for Daily Living. The worker was advised that he would be provided with the annual footwear allowance of $317.00 for 2015, and would be due the 2016 annual allowance in May of 2016.

On March 30, 2016, the senior case manager advised the worker that there was no medical information on file to support that the custom made AE shoes and boots were a specific requirement in relation to his compensable conditions.

On April 5, 2016, the worker's treating physiatrist advised the WCB that the worker required extra depth shoes and wide shoes with custom made orthosis to support his deformed toes and prevent worsening of the deformities of the toes. The specialist wrote that:

…[the worker] stated that his right foot is wide and the shoes available in the regular shoe stores are 1 to 2 E wide but his foot is 5 E wide and for this, he needs the orthopedic shoes through [MS] and supplier is [AE]. He does sweat excessively in his right foot and requires two pairs of shoes which he uses on alternate days because one pair gets wet and takes time to dry out. He has two pairs of shoes each for summer and winter, winter shoes are ankle boots. He has in these shoes the orthotics.

On May 4, 2016, the senior case manager advised the worker that after reviewing the report from his specialist, no change would be made to the February 2016 decision regarding the custom footwear.

On May 9, 2016, the senior case manager advised the worker that $317.00 was being deposited into his bank account which represented the amount of the annual footwear allowance he was entitled to because of his workplace injury. In May and June 2016, the worker appealed the decision to Review Office.

On June 13, 2016, Review Office determined that the allowance for footwear was correct.

Review Office acknowledged that the worker required a shoe which had more depth/width and found that this could be accommodated with over the counter rather than custom made footwear. Review Office found that as a result of the worker's injury, his footwear needs were more than they were prior to his accident. Review Office said it was reasonable for the worker to be entitled to a footwear allowance. Review Office stated that in accordance with WCB policy (effective March 1, 2014), the 2016 annual footwear allowance was $317.00. Review Office therefore concluded that the worker's allowance for footwear was correct and was in accordance with the current policy provisions.

On May 29, 2017, the worker appealed Review Office's 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.

As the worker's injury occurred in 1972, his claim is governed by the Act as it existed at that time.

In 1972, subsection 4(1) of the Act provided that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. Subsection 24(1) of the Act provided, in part, that:

In addition to the other compensation provided by this Part, the board may provide for the injured workman such medical, surgical, and hospital treatment, transportation, nursing, attendant care, medicines, crutches, and apparatus, including artificial members, as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury…

Subsection 24(2) provided for a clothing allowance in certain cases, as follows:

In addition to the other compensation provided by this Part, the board may allow to an injured workman, who, because of the nature of an injury in respect of which he has received compensation, 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.

WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy"), allows for the provision of recommended devices. The Medical Aid Policy sets out a comprehensive and coordinated approach to delivery of medical-aid services to injured workers. The provision of medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible.

As it relates to the provision of medically prescribed devices and related accessories, the Medical Aid Policy provides, in part, 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 prostheses 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. … 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.

WCB Policy 44.120.30, Support for Daily Living (the "Support for Daily Living 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.

Worker's Position

The worker was self-represented and was accompanied by his spouse at the hearing. The worker provided a written submission in support of his appeal, and made a presentation to the panel.

The worker's position was that he requires "made to order" or standardized custom made footwear as his right foot is degenerating and needs extra care, and extra width shoes are not available locally.

The worker described three different categories of footwear, which he referred to as off the shelf, made to order and custom made footwear. He submitted that what he had been wearing for the past ten years or more, and what he was looking for, fell within the middle category of made to order footwear.

The worker submitted that his left foot has degenerated progressively over the years. When he was younger, he was able to wear a standard shoe off the shelf, but is no longer able to do so. The shoes he has been wearing for the past ten years at least were custom made for him by AE and ordered through a store (MS) in another province, who is the Canadian representative of AE. The worker said that he did not remember receiving a cheque for footwear from the WCB prior to 2006. In 2006, his treating specialist issued a prescription for footwear and the WCB started paying for his footwear. Invoices were sent directly to the WCB. He understood that up until the February 1, 2016 invoice, the WCB always paid the full amount of the invoices they received for his footwear.

The worker said that with the width of foot that he has, companies don't even stock shoes which would fit him at the factory; they make them on a last, like a pedorthic shoe, but the lasts are standardized. The worker said that when making shoes to order for him, AE uses the same two lasts, because they are specifically very wide, have a very deep toe box, are consistent in heel height and are what would be called a basic policeman's oxford. The worker referred to a handwritten note on file dated April 1, 2016 in which he had detailed his need for specialized footwear and features of the footwear which accommodated his needs and helped him in terms of his function, including his gait and balance, foot access to the shoe, and accommodating the orthotic insole.

The worker said that the made to order shoes and boots are regularly available through MS. With respect to his footwear buying pattern, the worker said that traditionally he would buy one pair of runners and one pair of shoes in the fall, and two pairs of shoes in the spring from MS. The runners would be about $140.00 and the shoes about $500.00 (2016 prices), so basically the bill was around $1,800 to $2,000 per year. The worker noted that the brand is always the same. In response to a question from the panel, the worker stated that his traditional pattern of needing three pairs of shoes and one pair of runners per year remains about the same.

The worker said that the prices may depend in part on the leather used and noted, for example, that cordovan, which is a very strong leather, would be more expensive. With respect to the prices on the February 1, 2016 invoice which appeared to be higher, the worker said that boots were a special order at $999.00 because that was the cordovan leather.

The worker noted that the May 17, 2016 letter from the case manager stated that the WCB was accepting financial responsibility for his orthotics and custom made shoes, within reasonable costs, and encouraged him to contact a particular local vendor who had advised that they had shoes in his size and width in stock. The worker stated that he had gone to that vendor for many years, but there is no longer anything there that fits him. He noted that a certified pedorthist at the local vendor subsequently wrote a letter dated June 6, 2017, indicating that they had tried, but do not have shoes that would fit him, and had recommended that he be considered for custom made footwear due to his specific needs and difficulty in fitting. The worker submitted that a lot of people, including his treating specialist and the WCB medical advisor, were also pointing him in the same direction.

The worker said that the main reason he has dealt with MS is that they have access to AE, and AE is consistent and their lasts are what works for him. The worker said that he had built a rapport with MS over time, and MS is familiar with his situation and his needs. The worker said that based on his research, he did not believe that there is anyone in Canada who could make equivalent shoes.

The worker noted that he was not going to the extreme of seeking shoes which are "one-offs" or custom built just for him, where the costs are much higher. The worker said that while he may eventually have to go for such custom built specialty shoes, this is a much more expensive process and is not necessary at this point.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the worker is entitled to custom made footwear.

For the worker's appeal on this issue to be successful, the panel must find that there is a medical need for custom-made footwear related to the worker's compensable injury. Based on our review of all of the information before us, the panel finds that the worker requires specialized shoes as a result of his workplace injury. The shoes are required to accommodate the worker's right foot orthotic insole as well as injury related changes to his right foot.

In arriving at that conclusion, the panel accepts and places significant weight on the April 5, 2016 opinion from the physiatrist who has treated the worker on an ongoing basis for over 30 years and who, following his examination of the worker on April 5, 2016, recommended that the worker: "…requires extra depth shoes and wide shoes with custom made orthosis to support the deformed toes and prevent worsening of the deformities of the toes."

The panel also places significant weight on and accepts the opinion of the WCB medical advisor, who was asked to provide an opinion regarding custom footwear and responded, on June 30, 2017, that:

Based on the Apr 5 2016 report from [physiatrist], a custom made right shoe and orthotic is required and could likely be fashioned in Canada without a requirement specifically for the [AE] brand which [the worker] appears to prefer.

The panel notes that the evidence which is before us indicates that at present, specialized shoes which satisfy the worker's needs cannot be purchased through the normal footwear suppliers, nor has a Canadian manufacturer been identified at this point in time. As directed by the WCB, the worker attempted to purchase appropriate footwear locally. However, the local vendor advised the WCB by letter dated June 6, 2017, that they were unable to fit the worker with any of the footwear products they carry due to the worker's specific needs and difficulty in fitting.

The evidence shows that the worker has historically ordered his footwear through MS, an out of province supplier, and that the costs of the footwear have been paid by the WCB. MS has been able to provide the worker with shoes through AE that are not custom made in the strict sense of the word, but are made to order shoes that accommodate the worker's requirements. The panel accepts that given that no reasonable alternative Canadian-sourced footwear products have been identified, the worker should be entitled to continue his historical practice of purchasing the AE product.

The panel would note, however, that no evidence has been provided of a medical requirement for specific products, and in particular, the two specific footwear items which were listed in the February 1, 2016 invoice. While there may be features of these products that the worker prefers, such as the extra stiffness of cordovan leather that was referred to at the hearing, the panel does not accept that there is a medical requirement for these types of features without an acceptable medical foundation for same.

The worker's April 1, 2016 handwritten notes to his treating physiatrist refer to the worker's ability to purchase the AE brand of shoes that would address his requirements at the $400.00 to $500.00 price range (in contrast to the $665.00 to $1,000.00 prices identified in the February 1, 2016 invoice). The panel is satisfied that the worker is entitled to footwear product in the $400.00 to $500.00 price range, periodically adjusted to reflect inflation, that accommodates his medical requirements. The panel further notes that given the evidence that the condition of the worker's foot has been progressively deteriorating, his footwear requirements may change over the course of the claim, and as such, the cost of purchasing appropriate footwear will need to be reviewed as required.

In conclusion, the panel finds, on a balance of probabilities, that the recommendation for custom made shoes and orthotics provided by the treating physiatrist and supported by the WCB medical advisor meets the criteria under the Medical Aid Policy. The evidence establishes that the provision of orthotics and footwear will likely improve function and minimize the chance of aggravating the worker's existing injury or causing a further injury. The worker is therefore entitled to custom made footwear, as indicated above.

The worker's appeal is allowed.

Issue 2: Whether or not the worker's footwear allowance is correct.

Given the panel's decision on the first issue, the second issue is considered moot and was not addressed by the panel.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of December, 2017