Decision #90/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to a lumbar belt. A file review was held on August 20, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to a lumbar belt.
The worker is entitled to a lumbar belt.
The worker reported to the WCB that he injured his lower back while cleaning out a furnace on November 27, 2019. The employer filed an Employer’s Accident Report with the WCB on December 9, 2019 and confirmed the mechanism of injury.
At an initial assessment with his chiropractor on November 29, 2019, the worker reported low back pain with his lower back being tight, sore and stiff. The chiropractor noted the worker had decreased range of motion in his lumbosacral spine and diagnosed a lumbar sprain/strain. The report from that visit noted the worker continued working his regular duties.
On December 10, 2019, the worker’s treating chiropractor requested approval from the WCB for a lumbar belt for the worker. The WCB advised the worker’s chiropractor on January 16, 2020 that approval for the lumbar belt was denied. On January 17, 2020 the WCB spoke to the worker who advised he wore the lumbar belt while he was at work as his chiropractor prescribed it for him “…so that it can tighten the muscled (sic) in his back…”. The WCB also spoke to the worker’s chiropractor on that date and advised that items such as the lumbar belt are typically authorized when they are being used to help a worker return to work; in this situation, the worker had not missed any time and continued to perform his regular duties. The treating chiropractor noted his belief that the lumbar belt would also help the worker to continue to be able to perform his job duties.
A WCB medical advisor reviewed the request for a lumbar belt for the worker on January 24, 2020 and provided an opinion that “The scientific evidence does not support that the use of a lumbar support brace in the setting of a lumbar strain injury provides a material benefit to recovery”; therefore, the lumbar belt was not recommended. On January 29, 2020, the WCB advised the worker it would not approve coverage for a lumbar belt.
On February 7, 2020, the worker requested the WCB reconsider the decision not to approve the lumbar belt. In his request, the worker noted that he sought treatment with his chiropractor because he was struggling with pain after the workplace accident and after a few treatments his treating chiropractor recommended the lumbar belt. The worker further noted the lumbar belt helped his pain and enabled him to continue working and that coverage should therefore be approved.
A WCB medical advisor reviewed the request and advised because there was limited benefit to use of lumbar supports there was no change to the earlier opinion that funding should not be provided. On February 18, 2020 the WCB advised the worker there was no change to the previous decision that he was not entitled to coverage for a lumbar belt.
The worker requested reconsideration of the WCB’s decision to Review Office on February 28, 2020. The worker restated his position that the lumbar belt prescribed by his chiropractor helped relieve the pain from the workplace accident and enabled him to continue working.
Review Office determined on March 16, 2020 the worker was not entitled to a lumbar belt. Review Office relied on the opinions provided by two WCB medical advisor that the lumbar belt was not “medically required” to help in the recovery of a lumbar sprain/strain type of injury. Review Office noted the treating chiropractor’s reports did not indicate the worker was having difficulties at work or in performing his regular duties and the worker did not report any difficulties to the WCB. Review Office found the worker did not require the lumbar belt to perform his regular job duties as he did so without any difficulties.
The worker filed an appeal with the Appeal Commission on April 27, 2020. A file review was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act") and regulations, and by the policies established by the WCB's Board of Directors.
Section 4(1) of the Act provides that 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. Section 27(1) of the Act provides that the WCB "...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 has established Policy 44.120.10, Medical Aid (the "Policy") to address the provision of recommended devices, including lumbar belts. The Policy outlines the principles that govern the WCB’s funding of medical aid. Those principles set out that in determining the appropriateness and necessity of medical aid, the WCB considers recommendations from recognized healthcare providers, current scientific evidence about the effectiveness and safety of such devices and standards developed by the WCB Healthcare Department. The general principles set out that the WCB’s objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living and eliminate or minimize the impacts of a worker’s injuries, and that the WCB will refuse or limit funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.
Schedule B to the Policy provides that the WCB will fund medical devices and appliances if:
1. The medical device or appliance is prescribed or recommended by a recognized health care provider;
2. The need for the medical device and/or appliance is the result of a compensable injury;
3. The Board determines that the medical device and/or appliance will likely be or has been effective in the treatment or ongoing care of a compensable injury; and
4. The Board considers the cost of the medical device and/or appliance to be reasonable.
The worker’s position is outlined in the Appeal of Claims Decision form filed on April 27, 2020 and in his prior submissions to the WCB. The worker stated that he struggled to remain at work after the injury but was able to with chiropractic treatment and the use of the lumbar support belt. He clearly states that he did not wish to miss any work and did not want his treating chiropractor to take him off work or require him to do light duties.
The worker’s position is that use of the prescribed lumbar belt allowed him to remain at work completing his regular duties, and as a result he did not experience any time loss or loss of earning capacity. Therefore, the WCB should provide coverage for the cost of the belt.
The employer did not participate in the appeal.
In order for the worker’s appeal to succeed, the panel must determine that the worker required the lumbar belt in order to cure and provide relief from a compensable workplace injury. The panel was able to make that finding for the reasons that follow.
The Act allows the WCB to provide such medical aid as is considered necessary to cure and provide relief from an injury resulting from an accident. The Medical Aid Policy established by the WCB provides guidance in how determinations on questions of medical aid will be made. The objectives of medical aid, as set out in the Policy, are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries. The Policy also permits the WCB to refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.
The panel considered the information provided to the WCB by the worker’s treating healthcare professional. There is no question here that the medical aid device, a lumbar belt, was prescribed to the worker as a result of and to provide relief from a compensable workplace injury. In discussion with the WCB, the treating chiropractor explained that the lumbar belt was prescribed to the worker so as to allow him to remain at work and prevent him from having to take time off work. The WCB interpreted this to mean that the lumbar belt was prescribed to prevent injury but the panel notes that the injury to the worker’s lower back had already occurred at the time the device was prescribed. The only preventative aspect of this prescription was with respect to preventing the worker from taking time off work for recovery from the injury that he already incurred.
The WCB medical advisors who reviewed the file referenced the lack of evidence to support that the benefit from use of a lumbar support brace in the recovery from a lumbar strain injury. The panel notes that the worker’s treating chiropractor took a different view in that he prescribed the lumbar belt to the worker when the worker indicated he wished to continue working during his recovery. In other words, the belt was prescribed as an aid to support the worker’s safe and timely recovery on the job. Further, the efficacy of this medical aid for this worker has been demonstrated in that it did help to keep him at work where otherwise his chiropractor likely would have required him to take time away from work or work light duties during the recovery period. The evidence in this case is that there was no time loss claimed and the worker was able to continue working his regular duties without any physical restrictions in place while using the lumbar belt and obtaining regular chiropractic treatment as authorized by the WCB.
Given the evidence before us that the worker’s use of the lumbar belt as prescribed by his treating medical professional allowed for his safe and timely recovery and immediate return to work following the injury, the panel is satisfied on a balance of probabilities that this medical aid device was necessary to cure and provide relief to the worker resulting from his compensable workplace injury.
The worker is therefore entitled to a lumbar belt. The appeal is allowed.
K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of September, 2020