Decision #105/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the costs associated with flanges in relation to the December 11, 2016 surgery. A file review was held on June 6, 2018 to consider the worker's appeal.
Issue
Whether or not responsibility should be accepted for the costs associated with flanges in relation to the December 11, 2016 surgery.
Decision
Responsibility should be accepted for the costs associated with flanges over and above the regular usage.
Background
The worker was involved in a workplace accident on November 1, 1996. The worker sustained multiple injuries including severely depressed skull fractures with associated brain damage, reduced hearing acuity, communication impairment, right-sided facial palsy and multiple facial fractures. The WCB accepted his claim and payment of various benefits started. After treatment in the hospital for his injuries, the worker stayed in a rehabilitation facility. When he was discharged, he lived with his parents and personal care attendants were arranged to help in caring for the worker. After both of his parents passed, his daughter took over managing his care and was given power of attorney for her father.
On December 11, 2016, the worker underwent surgery to remove a large bowel obstruction secondary to the condition of diverticulitis from which he suffered. The worker also underwent an ostomy and was discharged from the hospital with ostomy equipment.
A WCB medical advisor, in a discussion with the WCB on August 9, 2017, provided the opinion that there was no relationship between the worker's compensable injuries and his surgery of December 11, 2016. The surgery was required for a bowel obstruction related to the worker's condition of diverticulitis and while certain medications could lead to the condition, the worker was not taking any of those medications. On August 9, 2017, the worker was advised by the WCB that in reviewing the medical information provided and based on the WCB's medical advisor's opinion, the surgery and any costs associated with it, were not related to the worker's compensable injuries.
The worker's representative, on August 30, 2017, requested reconsideration of the WCB decision to Review Office. The worker's representative disagreed with the WCB's decision that the supplies needed after the surgery should not be covered. The worker's representative noted that the worker suffered from short term memory loss as a result of the compensable injury and would frequently forget why he had the ostomy equipment and would pull the flanges off. The flanges cannot be reused and would need to be replaced each time one was removed.
On October 23, 2017, Review Office upheld the WCB's decision that costs for the flanges were not related to the worker's compensable injury. Review Office noted that medical aid may be provided in relation to a compensable injury or a further injury subsequent to a compensable injury but that the worker's diagnosis of diverticulitis did not meet either criteria. As such, coverage for the costs associated with the replacement costs of the flanges should not be covered.
The worker's representative filed an application with the Appeal Commission on November 30, 2017. A file review was held on June 6, 2018.
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) of the Act deals with medical aid. It states that:
Provision of medical aid 27(1)
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.
Pursuant to the Act, the Board of Directors enacted the following:
WCB Policy No. 44.120.10, Medical Aid, which presents a comprehensive and coordinated approach to delivery of medical-aid services to injured workers.
WCB Policy No. 44.120.30 (and No. 44.120.30.01), Support for Daily Living, which provides guidance regarding the WCB's approach to supporting workers' participation in the daily workplace and personal activities after an accident.
WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, which "…applies to a separate injury…where there may be a causal relationship between the further injury and the original compensable injury."
The worker is appealing the decisions made by the WCB Review Office arising from his 1996 workplace accident.
Worker's Position
The worker was represented by his daughter who has been given a power of attorney by her father. In a Worker's Appeal of Claims Decision form dated December 7, 2017, the worker's representative advised:
Due to my head injury and short term memory loss, I cannot remember that I now have an ostomy and rip it off at times. I would like to have the cost of the flange covered due to this.
The worker's representative advised that this is causing financial issues for the worker due to ostomy supplies.
In an email message to Review Office dated November 30, 2017, the worker's representative advised that:
…my father's claim was denied for some coverage on his ostomy equipment. I would like to appeal this decision on behalf of my father [name]. We would like to appeal for some help with coverage of just the flange part of his ostomy. Due to his head injury and his short term memory loss. He is forgetting about the ostomy and ripping it off. As you can imagine this can be very costly to him and quite a mess. I feel that if my father did not have a short term memory loss and head injury from a work related accident, he would not be waking up in the middle of the night and wondering what is on his stomach. With constant reminding he understands why it is there but again this cannot be done all the time and he does rip them off from time to time.
Employer's Position
The employer wrote to the WCB regarding the worker's appeal. The employer advised:
We have reviewed all documentation forwarded to our office pertaining to an Appeal made by [name] on behalf of [worker] regarding covering costs associated with flanges in relation to a December 11, 2016 surgery.
While we are emphatic to his circumstances. We are of the opinion based on all information provided that this operation has no relationship to the accident [worker] sustained while employed for [employer], on November 01, 1996.
Analysis
The worker is appealing the WCB decision that it is not responsible for the costs associated with the worker's removal of flanges related to his ostomy. For the worker's appeal to be approved, the panel must find that the WCB has the authority to pay such costs and that it is appropriate to do so in these circumstances. The panel finds that the WCB has the authority to pay such charges and that is appropriate to do so in this case.
Specifically, the panel finds that the WCB is not responsible for the normal use/replacement of flanges as they are needed as a result of a non-compensable surgery. However, the panel accepts the evidence provided that there is an increase in the number of flanges needed/replaced due to the worker's compensable short-term memory loss.
The panel finds this to be a reasonable expense arising from the compensable accident and accordingly authorizes this expenditure. The panel considers that this expense is permissible under Subsection 27(1) of the act, and is akin to the type of expenses which are authorized under WCB Policy 44.120.30, Support for Daily Living.
The panel finds authority to pay this expense under Section 7 of the above noted policy which provides:
7. Exceptional Circumstances
In exceptional circumstances the WCB may provide assistance beyond what is outlined in this policy. This includes but is not limited to situations where a worker has a severe and permanent injury, such as paraplegia / quadriplegia, a significant brain injury, serious mental health difficulties, major limb amputations, or a similar injury that necessitates special assistance to reduce the effects of the handicap. All such assistance is provided on a case-by-case basis with the approval of the Director.
The panel refers the file to WCB to determine the normal usage/replacement of flanges in cases of persons with same medical diagnosis, and the extra usage which arises from the worker's removal of the flanges due to his memory loss.
The panel finds that WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, is not applicable as the additional costs arise from the worker's accepted workplace injury and not from the further injury.
The worker's appeal is approved in part.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of July, 2018