The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to coverage for the cost of an Oticon Edu-Mic. A file review was held on January 26, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to coverage for an Oticon Edu-Mic.

Decision

The worker is not entitled to coverage for an Oticon Edu-Mic.

Background

The worker filed a claim with the WCB for noise-induced hearing loss on March 11, 2006. On July 10, 2006, the WCB advised the worker that they had determined he was exposed to noxious levels of noise at work which met the criteria under the WCB's noise-induced hearing loss policy, and that a WCB Ear, Nose and Throat (ENT) specialist had opined he required two hearing aids. The WCB advised the worker that his claim was accepted and the WCB would assume responsibility for two hearing aids to be purchased from the WCB's Approved Product List.

On December 20, 2011, the worker contacted the WCB to advise he was having difficulties with his hearing aids and requested replacement of his hearing aids, which the WCB authorized on December 23, 2011. On January 20, 2020, the worker's audiologist requested further replacement hearing aids for the worker, and the WCB approved that request on January 24, 2020.

On May 19, 2022, the WCB received a letter from the worker's hearing instrument practitioner requesting approval for an Oticon Edu-Mic connect device for the worker. The practitioner noted the worker was working at a location, during loud events, where he used a radio headset to communicate with others. The practitioner wrote that the worker had been looking for help to improve his hearing through the ear piece he used for communication when he was working. The practitioner noted that in consultation with the worker's hearing aid provider, they had determined the Oticon Edu-Mic might provide a connectivity between the worker's radio and his hearing aids. The practitioner indicated they had provided the worker with an Oticon Edu-Mic to try, and the worker had reported that with the device, he did not need the ear piece to hear communications. The practitioner enclosed with their letter a quote for the Oticon Edu-Mic and a May 17, 2022 letter from the worker detailing how having the device would benefit him in his job, by enabling him to hear and communicate more clearly and to do his job safely and efficiently.

On May 25, 2022, the WCB advised the worker that he was not entitled to coverage for an Oticon Edu-Mic as the WCB did not cover the cost of options or accessories for hearing aids and the evidence did not support the worker required the device.

On August 9, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that on several occasions he had used the Oticon Edu-Mic his hearing instrument practitioner had loaned him, and he had "found it to be a perfect fit for his work audio issue." He submitted that the device eliminated the need for his radio ear piece and allowed him to communicate with his co-workers and to do his job "…safely and efficiently."

On October 4, 2022, Review Office determined that there was no entitlement to coverage for the cost of an Oticon Edu-Mic. Review Office noted that as per WCB policy, the worker had been provided with appropriate hearing aids prescribed by his practitioner as a result of his compensable hearing loss, which were functioning well. Review Office found that the Oticon Edu-Mic was an additional accessory, the need for which would not be related to the March 9, 2006 workplace injury. Review Office concluded that the WCB would therefore not be responsible for any associated costs for the device.

On October 11, 2022, the worker filed an appeal with the Appeal Commission and a file review was scheduled.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.

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.

Compensation in the form of medical aid is dealt with under section 27 of the Act. Subsection 27(1) thus 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."

Subsection 27(10) further states, in part, that "Medical aid furnished or provided under any of the preceding subsections of this section shall at all times be subject to the supervision and control of the board..."

WCB Policy 44.120.10, Medical Aid (the "Policy"), sets out general principles regarding a worker's entitlement to medical aid. The Policy provides that the WCB determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. The Policy also provides 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.

Schedule B to the Policy sets out general principles with respect to the funding of medical devices and appliances for injured workers. It is noted in that Schedule that medical devices and appliances "…can include, but are not limited to: prosthetics, braces, dentures, hearing aids, eyeglasses or contact lenses, crutches, canes, wheelchairs and over-the-counter medical devices or appliances."

The Schedule goes on to state, in part, 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.

Worker's Position

The worker was self-represented on the appeal. The worker's position, as outlined in his Appeal of Claims Decision form, was that he requires an Oticon Edu-Mic to do his job safely and properly, and the WCB should cover the cost of that device.

The worker submitted that he has an accepted claim and his hearing loss is covered by WCB. He noted that he is retired from his original job and has taken on a part-time position. His current position requires the use of a radio and headset. The job requires him to hear and communicate with others, both over the radio using the headset and in person, including with security, supervisors, co-workers, paramedics and clients. It is a very loud environment, and he works approximately 18 to 20 events per month.

The worker submitted that his hearing loss has made communication over the radio difficult. He has been wearing a hearing aid in one ear, and the radio headset in the other ear. The worker noted that "[t]rying to manage a hearing aid in one ear for one on one communication, and a headset earpiece in the other is not good." The worker submitted that the Oticon Edu-Mic alleviates the problem by syncing the radio to his hearing aids, so he can wear both hearing aids and hear properly without having to get people to repeat important information.

Employer's Position

The employer was represented by its Workers Compensation Officer, who provided a written submission dated November 23, 2022. The employer's position, as outlined in that submission, was that they agreed with Review Office's decision that the worker's request for an accessory is not related to the March 9, 2006 work injury and the WCB should not be responsible for associated costs for that device.

Analysis

The issue before the panel is whether or not the worker is entitled to coverage for an Oticon Edu-Mic. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker requires an Oticon Edu-Mic to cure and provide relief from his compensable injury. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for bilateral noise-induced hearing loss. The worker has been provided with hearing aids for both ears, which have been replaced periodically. The worker has requested that the WCB cover the cost of an additional device or accessory to enable him to do his current job safely and properly.

The worker is currently working part-time in a loud environment, where he is required to communicate with people by radio, using a headset and in person. The worker says he has difficulty communicating over the radio due to his hearing loss, and has been trying to manage by wearing a hearing aid in one ear and using the headset ear piece in the other ear. The worker has indicated that his hearing aids "work wonderfully…but not while wearing an earpiece for my radio."

The panel notes that the WCB and Review Office decisions indicate that accessories or options for hearing aids are not acceptable under the Policy. The panel does not accept, as a blanket statement, that the WCB is not responsible under the Act or Policy for the costs associated with accessories or options. The panel notes that the description of the medical devices for which funding may be provided is inclusive, not exhaustive, stating that such devices or appliances "can include, but are not limited to…"

Having said that, the panel notes that there is no general principle in the Act to indemnify workers for all losses and costs resulting from a work-related accident. Decisions are made on a case by case basis, and a request for funding to cover the cost of medical devices and appliances, or any potential options or accessories, must still satisfy the criteria or requirements under the Act and Policy.

In this case, based on the evidence which is before us, the panel is unable to find that the request for coverage for the cost of an Oticon Edu-Mic meets the criteria or requirements in Schedule B to the Policy, and in particular the first criterion, namely that the medical device or appliance is prescribed or recommended by a recognized health care provider. The panel acknowledges the worker's hearing instrument practitioner commented that the device "may provide a connectivity solution between his radio and his hearing instruments" and that the worker tried the device and reported it improved his hearing and his speech understanding, and the practitioner provided a quote for the device. The panel is not satisfied, however, that this meets the criterion in Schedule B of being prescribed or recommended by a recognized health care provider.

Accordingly, based on the foregoing, and on a balance of probabilities, the panel finds that the worker does not require an Oticon Edu-Mic to cure and provide relief from the worker's compensable injury. The panel therefore finds that the worker is not entitled to coverage for an Oticon Edu-Mic.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of March, 2023