Decision #20/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to coverage for costs associated with home based exercise equipment. A file review was held on January 31, 2023 to consider the worker's appeal.
Whether or not the worker is entitled to coverage for costs associated with home based exercise equipment.
The worker is not entitled to coverage for costs associated with home based exercise equipment.
The WCB accepted the worker’s claim for multiple injuries they sustained after falling from the top of a grain elevator on August 8, 2005. By early 2006, the worker had returned to their full regular job duties and on February 3, 2006, the worker’s treating orthopedic surgeon reported the worker was walking normally without a limp, had an essentially healed left femur after undergoing surgery and in addition to being back to work full time, was also participating in some recreational activities including playing hockey. The surgeon reported the worker was doing some home exercises as well as seeking physiotherapy, which they found helpful.
The worker’s March 2006 request for coverage for a monthly gym membership to continue with self-directed exercises was approved by the WCB as the worker was no longer receiving in-clinic physiotherapy treatment. By August 28, 2006, the treating orthopedic surgeon determined the worker had normal range of motion in their spine, was able to touch their toes and could “…engage in activities in an unrestricted manner” and was discharged from care on an as needed basis. The WCB continued to cover the cost of the worker’s gym membership on an annual basis.
A WCB medical advisor reviewed the worker’s file and the requirement for annual gym membership on June 17, 2016. The medical advisor noted the worker had sustained “…serious structural injures…” from the workplace accident and had significant permanent impairments but had returned to their full regular duties, and concluded that not exercising could lead to deterioration of the worker’s condition. The medical advisor recommended the WCB continue to cover the cost associated with the worker’s continued regular exercise program.
The WCB received a report from the worker’s treating physiotherapist on November 20, 2018 for an initial assessment. The worker reported increased pain for over two months in the top of their right shoulder, down into their anterior chest area and arm with numbness and tingling into their fingers. The WCB approved 11 sessions of physiotherapy for the worker to treat the pain in their shoulder.
On May 25, 2022, the worker contacted the WCB to advise that the facility where they had been working out had been sold and inquired whether the WCB would purchase the equipment they had been using. On May 27, 2022, the worker provided the WCB with a list of the equipment, along with the original prices for that equipment, as well as a letter in support of the request from their treating physiotherapist. The physiotherapist noted the worker had maintained their mobility and helped progress their strength to the point where the worker could continue to work their regular job duties while using that equipment. The physiotherapist also noted the worker’s symptoms increased when they missed regular exercise.
A WCB physiotherapy consultant reviewed the worker’s request and their file on June 8, 2022. The consultant opined the requested equipment was not “…a medical necessity for recovery” and noted the worker had been at maximum medical improvement since 2006. The consultant acknowledged that regular exercise was vital for everyone, including the worker given their extensive and significant injuries because of the workplace accident; however, the consultant also noted it was a personal responsibility to maintain good health and that they expected a regular home exercise program would be part of the worker’s continued maintenance of good health. The WCB physiotherapy consultant also noted the worker had attended the facility for over 15 years and should be capable of continuing those exercises at home or at another facility. On June 9, 2022, the WCB advised the worker that the cost associated with the purchase of the home based exercise equipment would not be accepted.
On July 19, 2022, the WCB received a letter in support of the worker’s request for coverage of home based exercise equipment from the worker’s treating family physician, noting the worker was extremely diligent with their exercise and rehabilitation program and became very sore and stiff if they did not complete their exercises even for a few days. The physician noted their belief that it was extremely important for the worker to continue with their exercise program which made the worker more comfortable and able to work longer. On July 22, 2022, the WCB advised the worker the information from their physician was reviewed but there would be no change to the earlier decision.
The worker requested reconsideration of the WCB’s decision to Review Office on August 31, 2022. In their submission, the worker noted that if they miss an exercise session, they suffer a loss of mobility, range of motion and have leg, back and shoulder pain in addition to headaches, all of which affect their ability to perform their daily activities. The worker also noted that chronic pain also affects their mental health and general wellbeing. On September 29, 2022, Review Office determined the worker was not entitled to coverage for costs associated with home based exercise equipment. Review Office relied on and accepted the opinion of the WCB physiotherapy consultant that regular exercise was important for the worker given their injuries sustained as a result of the workplace accident but found there was no medical necessity to purchase any equipment to do so.
The worker filed an appeal with the Appeal Commission on October 19, 2022 and a file review was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.
Section 4(1) of the Act provides that a worker is entitled to benefits under the Act when it is established that a worker has been injured as a result of an accident at work. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act.
Section 27 of the Act allows the WCB to provide 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 define key terms and sets out general principles regarding a worker's entitlement to medical aid. The Policy notes that medical aid, as defined in the Act, includes treatment or services provided by healthcare providers. The Policy goes on to set out that the general principles governing the WCB's funding of medical aid include the following:
• The Board is responsible for the supervision and control of medical aid funded under the Act or this policy.
• The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury.
• In determining the appropriateness and necessity of medical aid, the Board considers:
o Recommendations from recognized healthcare providers;
o Current scientific evidence about the effectiveness and safety of prescribed / recommended healthcare goods and services;
o Standards developed by the WCB Healthcare Department.
• The Board promotes timely and cost-effective access to medical aid.
• The Board'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.
The worker’s position is set out in their Appeal of Claims Decision form and subsequent correspondence with the Appeal Commission.
The worker submits that the WCB should be responsible for the costs of purchasing home based exercise equipment as it previously was responsible for the costs associated with the worker’s biweekly attendance at the physiotherapy clinic to stretch, use Pilates equipment and weights to increase their strength and mobility. The worker stated that the clinic has closed and that they have purchased the equipment from the clinic, at a cost of $7000, which is now set up in their own home. The worker stated that they continue to use this equipment on a regular biweekly basis and that if they fail to do so, they “quickly lose mobility, increase my pain levels, lack focus, as well as have difficulty sleeping due to pain. This greatly reduces my ability to perform regular work duties.”
The worker submits that they require this equipment to keep working with minimal pain and therefore the WCB should accept responsibility for the cost of the equipment. The worker further noted that there is no other facility in the area where the worker resides that has such equipment.
In their submission to Review Office, the worker provided a letter from their current employer dated August 19, 2022 in support of the worker’s request, setting out that the equipment and the worker’s dedication in using it has provided structure to the worker’s ongoing management of their recovery and that the worker continues to work hard to maintain the progress made. The worker also provided a letter from their treating family physician dated July 19, 2022 which sets out that since the accident, the worker has been “extremely diligent with rehab and [their] exercise program” and that the worker finds they become sore and stiff if they neglect to complete their exercises even for a few days. The physician further stated “…I feel it is extremely important that [the worker] continues with [their] exercise program. As it makes [them] more comfortable and obviously will keep [the worker] working safely as a labourer for longer.” The worker also submitted a letter from their treating physiotherapist dated May 26, 2022 outlining their support for the worker’s request that the WCB purchase the equipment the worker had been using from the physiotherapist’s clinic. The physiotherapist confirmed that they sold their clinic recently and that the equipment used by the worker to maintain their mobility and increase their strength “includes a variety of specialized pilates equipment (reformer, Cadillac, chair and accessories) along with a multiuse squat rack, a variety of weight plates and adjustable dumbbells.” The physiotherapist stated that the “best option” is for the worker to be able to continue with their current exercise programming using the equipment at home, noting that the worker “has proven through the years that [they are] very motivated to continue to exercise” and that they understand the importance of maintaining their mobility and strength. In respect of the medical necessity for this program, the physiotherapist stated that:
“Due to the significant trauma that [the worker] sustained and the number of injuries, mobility throughout [their] body…and strength will need to be addressed for the rest of [their] life, as if mobility and full strength are neglected, [they] will lose function because of the significant scar tissue that exists throughout [the worker’s] body. As well, a lack of mobility and a lack of strength are major risk factors in the development of post traumatic osteoarthritis.”
In sum, the worker’s position is that they require the use of this equipment to maintain their function and mobility and continue to increase their strength. As such, it is a medical need and the WCB should be responsible for the cost of the equipment.
The employer did not participate in the appeal.
This appeal relates to the question of whether the WCB should reimburse the worker for the cost of various items of exercise equipment for use in their home. For the worker’s appeal to be granted, the panel would have to determine that the equipment is required by the worker in order to “cure and provide relief from” the effects of the compensable injury sustained on August 8, 2005. As outlined in the reasons that follow, the panel did not determine that to be the case and therefore the worker’s appeal is denied.
The Act permits the WCB to fund medical aid that it determines is necessary to cure or provide relief from the effects of a compensable injury, and the Medical Aid Policy outlines that the WCB will determine “the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury.” In determining what is appropriate and necessary, the WCB considers recommendations from healthcare providers, among other factors. The Policy also outlines that the 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.
The evidence in the claim file and contained in the worker’s submissions, confirms that the worker used various gym equipment, including specialized Pilates equipment and weight equipment, in the setting of the treating physiotherapist’s clinic until the clinic closed and was sold in 2022. The worker’s evidence is that they attended the clinic twice weekly to use this equipment. The WCB claim file confirms that the WCB provided payment on a semi-annual basis to the physiotherapist’s clinic for the worker’s use of the “gym” facility until at least late 2021. On May 25, 2022, the worker advised the WCB that the facility had been sold and requested that the WCB purchase the equipment for the worker to continue using.
The panel noted that on June 17, 2016, a WCB Medical Advisor noted in response to a request for ongoing payment of the gym facility pass that:
“…while it is important for all of us to exercise, it’s even more important for this worker to minimize the risk of deterioration of the effects of [their compensable injury] and to keep [the worker] at work, with good quality of life. These points seem to support that a balance of probabilities is on the side that the regular exercise is more important to this worker due to the effects of [their] compensable injury.”
The panel noted that the WCB provided funding for the worker’s gym access until the present request arose and that we have not been asked to consider the appropriateness and medical necessity for such funding to continue.
When a WCB physiotherapy advisor reviewed the worker’s request and file on June 8, 2022, they concluded that the requested exercise equipment “is not considered a medical necessity for recovery” noting also that the worker has been at maximum medical improvement since 2006. The physiotherapy advisor went on to comment on the benefits of exercise for everyone, including the worker and stated that this is a “personal responsibility, versus that of WCB for maintenance of health and continuation of a home exercise program following an injury. It is expected that a home exercise program be part of [the worker’s] continued management.” Noting that after more than 15 years of accessing the physiotherapy clinic for exercise the worker “should be very well versed and able to continue, at least some of [their] current exercise regime at home or in a gym.”
The panel also considered the opinion provided by the treating physician, noting that the physician supported that the worker should continue to exercise and noted that the worker reported noticing stiffness and soreness when they miss their exercise for any reason. The physician also stated that they viewed the equipment purchase as a “good investment”.
The panel noted as well the letter of support from the physiotherapist who treated the worker in the past and whose equipment the worker proposed to purchase. The physiotherapist clearly outlined the reasons why the worker needed to exercise to maintain their mobility and strength and function and supported the worker’s intention to continue the same exercise program using the equipment the physiotherapist agreed to sell to the worker.
The panel is satisfied that while the evidence supports a finding that the worker’s exercise program has been effective in helping to maintain the worker’s strength, mobility and function over the past 15 or more years, that does not mean it is medically necessary for the worker to have their own exercise equipment in their own home. As noted by the WCB physiotherapy advisor, there is an option at a local gym or fitness centre for the worker to maintain and increase their fitness, and further, a “comprehensive home exercise program can be completed with minimal equipment.” In other words, there is more than one option available to the worker to continue with an exercise program. The Policy provides the WCB with a structure within which it must exercise its discretion in funding requests for medical aid. The panel is satisfied that the WCB has, in this case, exercised its discretion in accordance with the Policy.
On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker is not entitled to coverage for costs associated with home based exercise equipment as it cannot be established that these costs are appropriate and a medical necessity. Therefore, the worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of February, 2023