The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a footwear allowance. A file review was held on July 14, 2020 to consider the worker's appeal.

Issue

Whether or not in addition to alteration costs, the worker is entitled to a footwear allowance.

Decision

That the worker is not entitled to a footwear allowance.

Background

The worker has an accepted claim for a workplace accident which occurred on June 12, 1997 and resulted in a fractured left heel. The worker did not completely recover from his injury and had been receiving benefits related to footwear costs, including footwear and alteration costs, since 1998.

On January 11, 2016, the worker's footwear supplier submitted an invoice to the WCB for four pairs of footwear and alterations. The worker's WCB case manager reviewed the invoice and noted to file that the worker would be provided with the maximum yearly footwear allowance pursuant to WCB's Support for Daily Living policy, with the cost of alterations being covered under a different WCB policy. By letter dated January 14, 2016, the WCB's Compensation Services advised the worker that they would approve the footwear for the maximum allowable amount of the footwear allowance, and the costs of modifications would be paid separately.

On January 18, 2016, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that he had been receiving four pairs of shoes per year since his workplace accident, which he believed was fair, and he did not agree with the decision

to cut back on the amount he was allowed for footwear. On February 3, 2016, the employer provided a submission in support of Compensation Services' decision.

On February 19, 2016, Review Office determined that the worker was not entitled to a footwear allowance, but was entitled to reimbursement for alteration costs to his footwear. Review Office found that a review of the medical information supported that the worker required alterations to his footwear since 1998 "…due to how his left foot now strikes the ground when he walks," which alterations consisted of a form of lateral wedge along with a lateral heel and sole wedge.

Review Office noted that the worker's footwear supplier had advised that the worker needed modifications to his footwear, and that given his weight and size he went through them a lot faster. The worker had also indicated in his submission that his workplace injury was to his heel and that if he did not wear shoes in good condition, his back started to bother him. Review Office noted that the WCB had previously determined that the worker's low back difficulties were not accepted in relation to his compensable injury.

Review Office acknowledged that the worker required a good pair of shoes to help his low back difficulties, and that the worker wore out his footwear quickly due to his weight and size, but found that neither his low back difficulties nor his physical size were related to his workplace injury. Review Office concluded that the worker's need for footwear was not directly related to his workplace accident as the worker required footwear prior to the accident, and continued to require footwear after the workplace accident, and the type and number of pairs of footwear he required each year were not related to his compensable injury.

On December 4, 2018, the worker requested clarification of the February 19, 2016 decision from Review Office. The worker explained to Review Office that his footwear did not last as long because his shoes were altered and put back together after the alteration. Review Office advised the worker that he could contact his footwear supplier and ask them to provide further information in this regard, which Review Office could then review.

On March 23, 2020, the worker appealed Review Office's February 19, 2016 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 Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 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.

Subsection 27(1) of the Act states 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 Board of Directors has established Policy 44.120.30, Support for Daily Living (the "Policy"), the "Policy Purpose" section of which states 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 applies to all decisions made on or after March 1, 2014, with respect to entitlement on or after March 1, 2014, and identifies forms of assistance which may be provided to and for the benefit of injured workers.

Paragraph 6 of the Policy provides as follows:

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 further provide, in part, as follows:

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 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.

Worker's Position

The worker was self-represented, and provided a written submission in support of his appeal. The worker's position was that he has incurred, and continues to incur, extra costs for footwear as a result of the effects of his workplace injury, for which he should be compensated.

The worker submitted that because his left heel was crushed when he fell at work, his shoes have to be cut down the side, to place a wedge along his left foot. He said his shoes do not last as long as shoes which have not been altered in this way, as the glue "lets go." He noted that he has tried to fix the problem by having the shoes reglued, but this has not worked. As a result, he has had to buy more shoes.

The worker noted that he had been receiving coverage for four pairs of shoes each year, and the decision that he was no longer entitled to be paid for these shoes has resulted in increased expense for him. He said he had inserts made for his shoes in the past, but this did not work, as the inserts were very uncomfortable and his shoes wore out faster. He moved to having the wedge inserted in his shoes, which has not caused him problems.

The worker stated that while everyone needs shoes, not everyone needs to have a wedge inserted in their shoes to enable them to walk properly. He said that before his accident, his shoes would last him a minimum of one year, but now they only last three to four months if he is lucky, because of the necessary alterations. He also noted that there are only certain shoes which can be altered as required, which happen to be the more expensive ones.

Employer's Position

The employer was represented by its WCB Coordinator, who provided a written response to the worker's appeal.

The employer's representative advised that they supported the Review Office decision that the worker was not entitled to a footwear allowance as a result of the injury to his left heel, and asked that the decision be upheld.

The employer's representative noted that while they appreciated the worker's position, the legislation and policy establish that medical aid is at all times under the control of the WCB. The representative stated that in their view, the worker had been, and continued to be, fairly and adequately compensated for his June 12, 1997 workplace injury.

Analysis

The worker is appealing the decision by the WCB's Review Office that he is not entitled to a footwear allowance as related to his June 12, 1997 workplace accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker requires assistance, other than alteration costs, for additional costs associated with the purchase of footwear as a result of his workplace accident and injury. The panel is unable to make that finding.

The panel notes, at the outset, that Review Office has determined the worker is entitled to alteration costs to his footwear, and that this determination has not been appealed. The issue which is before the panel is whether the worker is also entitled to a footwear allowance, in addition to the accepted alteration costs.

The worker suffered an injury to his left foot as a result of his 1997 workplace accident, from which he did not fully recover and for which he has been awarded a permanent partial impairment rating of 4.6%.

The worker has argued that because of his 1997 workplace accident and injury, his shoes have to be altered, by cutting down the side of his left shoe and inserting a wedge into it. The worker has claimed that as a result of such alterations, his footwear falls apart and has to be replaced much more often. Based on our review of the information on file, the panel finds that there is insufficient evidence to support the worker's position in this regard.

The panel notes that in a memorandum to file dated January 11, 2016, the worker's case manager documented that she had contacted the worker's footwear provider, who confirmed that the worker needed modifications to his footwear and that "…given his weight/size he goes through them a lot faster."

In his submission to Review Office, the worker also indicated that "…if I do not wear shoes in good condition my back starts to give me problems." The panel notes that back issues have not been accepted as being related to the worker's workplace accident.

File information shows that following the Review Office decision, the worker contacted the WCB and Review Office, and was encouraged to obtain support for his position that he was entitled to a footwear allowance or coverage for additional footwear due to his workplace injury. The worker was further advised that if such information was provided, this issue would be reviewed. The panel notes, in particular, that it is documented on file that:

• On December 4, 2018, the worker called the Review Office and spoke about his need for four pairs of shoes a year because of his accident. The Review Officer advised the worker to speak with his footwear provider, and if they agreed to provide him with a letter stating that his altered shoes have a limited lifespan, Review Office could review his file. The worker said he would do so and would provide another submission to Review Office;

• On November 13, 2019, the worker again contacted the Review Officer and said that his shoes still only lasted about three months, and that they would fall apart once they were altered. The Review Officer encouraged him to attend his footwear provider or a podiatrist, chiropractor or physiotherapist, to discuss options for his heel or if an orthotic would help him. The Review Officer also advised the worker that if he wanted Review Office to look at his file again, he would need to provide new medical or professional opinion or information to support what he was saying, and noted that the worker said he would do so.

In the circumstances, the panel would have expected the worker to have sought out and provided the WCB or Review Office with documentation from his healthcare and/or footwear providers in support of his position, particularly given the indication that he intended to do so. Unfortunately, the worker has not provided, or has been unable to provide, such documentation or other evidence to support his position on this issue.

The panel acknowledges the worker's argument that his shoes lasted him much longer before his workplace accident, but does not accept that this is sufficient to establish that his footwear has to be replaced more frequently because of his workplace injury, or more particularly, because of the alterations to his footwear.

Based on the foregoing, the panel is unable to find, on a balance of probabilities, that the worker is incurring or has incurred additional costs, other than for alterations, associated with the purchase of footwear, or that he requires assistance with any such costs, as a result of his workplace accident and injury. The panel therefore finds that the worker is not entitled to a footwear allowance.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 11th day of September, 2020