Decision #111/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to an allowance for footwear in addition to work boots. A file review was held on July 9, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to an allowance for footwear in addition to work boots.
The worker may be entitled to an allowance for footwear in addition to work boots.
On August 17, 2012, the worker reported that he injured his right Achilles tendon in an incident at work on August 15, 2012. He described the incident as:
I slipped down a ramp leading to the basement. I felt a snap and pop in my right achilles (sic) tendon and there was pain.
The worker was seen at a local emergency department on August 15, 2012 and referred to an orthopedic surgeon for follow-up. On August 20, 2012, the worker was seen by the orthopedic surgeon who recommended the worker undergo surgery to repair a suspected right Achilles tendon rupture, which surgery took place on August 30, 2012.
After the surgery, the worker attended physiotherapy sessions and on May 16, 2013, a Physiotherapy Discharge Assessment form was submitted to the WCB. The physiotherapist noted that the worker had full range of motion and was to return to work in June 2013. A note was made on the form that the worker was "…experiencing abnormal wear of footwear due to thickened Achilles tendon."
On May 2, 2014, the worker was provided with a letter from the WCB indicating that as he had a "…permanent deformity at the site of injury which is causing increased wear and tear to your footwear", he was entitled to a maximum yearly footwear allowance. On January 9, 2015, the worker was provided with a letter advising of a change to the WCB policy and a reduction in his yearly footwear allowance.
At the request of the worker's WCB case manager, the worker's file was reviewed by a WCB medical advisor on September 19, 2016 who opined that there was no medical evidence to support that the worker had altered foot mechanics as a result of the workplace injury and no longer required specialized footwear. On the same date, the worker was advised that he was not entitled to an allowance for footwear. The worker requested a meeting with the WCB to discuss this issue. On March 16, 2017, the worker's WCB case manager met with the worker and his representative, who provided the case manager with a copy of a prescription for specialized footwear from the worker's treating orthopedic surgeon dated September 18, 2013.
The worker attended a call-in examination at the request of the WCB on April 13, 2017. The worker was examined by a WCB orthopedic consultant. The WCB orthopedic consultant observed and recorded scarring on the Achilles tendon. The WCB orthopedic consultant noted the runners the worker was wearing did not come up to the level of the scar. The WCB orthopedic consultant also noted the wear on the soles and heels of the worker's runners was symmetrical. The WCB orthopedic consultant opined that the worker would be capable of normal activities with regular shoes and boots and proper thickness of socks.
On April 24, 2017, the worker was advised that the WCB's orthopedic consultant's opinion was that he was capable of normal activities with regular boots and appropriate socks. Therefore, he was not entitled to an allowance for footwear.
On October 28, 2018, the worker requested reconsideration of the WCB's decision to Review Office. In support of his request, the worker submitted a report dated October 1, 2018 from his treating healthcare provider indicating that due to the surgical repair of the worker's right Achilles tendon, there was a "…significant wear pattern on [the worker's] shoes, both the soul (sic) of the shoe and the back heel support."
Review Office determined on November 8, 2018 that the worker was entitled to an allowance for footwear, specifically for work boots. Review Office placed weight on the WCB orthopedic consultant's April 13, 2017 examination of the worker. Review Office accepted the WCB orthopedic consultant's opinion regarding the footwear the worker wore during the examination and noted that the worker would not have the extra wear and tear on his footwear if he wore lower cut shoes. However, Review Office determined that as the worker was required to wear work boots to perform his job duties and work boots would typically be higher cut to allow protection and support, an allowance should be provided to the worker for work boots.
The worker filed an appeal with the Appeal Commission on January 31, 2019. A file review was arranged.
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 4(1) of the Act provides:
Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
Subsection 27(1) of the Act provides:
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.
The WCB Board of Directors enacted policy 44.120.30, Support for Daily Living. This policy has a clause dealing specifically with footwear. It provides:
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 worker is appealing the WCB Review Office decision to provide entitlement to an allowance for work boots only. The worker has requested a file review by the WCB Appeal Commission. He has indicated that his injury effects all of his shoes and not just work boots. He is relying on doctors’ reports that have documented his permanent injury. The worker stated in his submission to the Appeal Commission that, regardless of the shoe style, his heel will always effect all his footwear. He has requested that all of his footwear be approved for coverage.
The employer did not participate or provide additional documentation for the file review.
The worker is requesting coverage for all footwear as a result of his 2012 injury. For the panel to accept the appeal, the worker must demonstrate his need for coverage on non-work-related footwear. The panel finds that, on the balance of probabilities, and the medical evidence available, the worker may be entitled to an allowance for footwear in addition to work boots.
In reviewing the file, the panel notes that the 2012 injury and subsequent surgery to the worker's right Achilles tendon resulted in him having an enlarged Achilles tendon.
The panel acknowledges the enlarged tendon may not cause abnormal wear of all footwear depending upon where the back of the footwear comes in contact with the back of the worker's right ankle. The panel notes, for example, the May 16, 2013 physiotherapy report which notes the worker "…is experiencing abnormal wear of footwear due to thickened Achilles tendon. May require custom boot for work. New canvass sneakers exhibit fraying at the heel after only a few days wear." (The physiotherapist does not describe the type of sneaker the worker was wearing). The worker's enlarged Achilles tendon area was also confirmed by the WCB sports medicine consultant during the worker's call-in exam on April 8, 2017. Based upon this, the panel accepts that the enlarged right Achilles tendon will result in the worker incurring additional footwear costs and he is therefore entitled to coverage under Policy 44.120.30, Part C. Clothing and Footwear.
While there is some reference earlier in the file as to abnormal wear of the soles of the worker's footwear, the panel finds that is not case throughout the entire claim. For example, the WCB sports medicine consultant who examined the worker on April 8, 2018 noted that the wear on the soles (and heels) of the worker's running shoes that he was wearing was symmetrical.
The Review Office took the position that the worker would normally be able to wear low cut footwear, which would not be effected by the enlarged right Achilles tendon. The only exception being work boots, which are typically higher cut to provide protection and support. Therefore, the worker was entitled to additional compensation for work boots only.
While the panel concurs that not all footwear will be effected by the worker's injury, the panel does not concur that the only exception will be work boots.
It is the panel's position that there is a variety of footwear that could not normally be accommodated as "lower cut". For example, most winter footwear is generally fitted above a person's ankle. That may also be the case for some types of sports shoes as well as some rainwear. As a result, although the panel does not accept that all the worker's footwear would be eligible to additional compensation under the terms of Policy 44.120.30, the panel finds that if the worker requires footwear that reasonably can only be obtained in a style that would be abnormally deteriorated by his enlarged Achilles tendon, that footwear will be covered as per the policies noted.
For the reasons noted the worker's appeal is granted.
B. Hartley, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of September, 2019