Decision #49/24 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the estate was not entitled to reimbursement for the purchase of a scooter. A teleconference hearing was held on February 12, 2024 to consider the worker's appeal.

Issue

Whether or not the estate is entitled to reimbursement for the purchase of a scooter.

Decision

The estate is not entitled to reimbursement for the purchase of a scooter.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision 128/23, dated November 29, 2023. The background will therefore not be repeated in its entirety.

The worker had an accepted WCB claim for an initial injury to their left knee that occurred at work on December 30, 1969 and underwent surgery to repair a posterior horn tear. The worker returned to work and continued to work until their retirement in May 1995. Due to ongoing complaints and bilateral knee osteoarthritis, the worker underwent a left knee replacement surgery on February 14, 2001. In 2008, the worker’s treating orthopedic surgeon recommended a revision surgery, which surgery was approved by the WCB and occurred on October 27, 2009. The worker reported to the WCB they fell down the stairs at home due to the instability in their left knee in June 2009 and on March 1, 2010 and May 14, 2010, the WCB accepted responsibility for right shoulder and left shoulder injuries respectively. The worker underwent rotator cuff surgeries for both shoulders, the right shoulder on August 17, 2010 and the left shoulder on February 1, 2011, with this surgery being unsuccessful.

The worker continued to receive benefits with the worker’s representative advising the WCB on December 29, 2022, due to ongoing instability in the worker’s left knee, various mobility devices had been purchased for the worker, including a mobility scooter and the representative requested the worker be reimbursed for the cost of the scooter. In a further email message on January 18, 2023, the representative advised the WCB the worker used the mobility scooter as a wheelchair and for mobility to perform some activities of daily living during nice weather and provided a copy of the purchase receipt. On January 30, 2023, the WCB advised the worker it could not be established the purchase of the scooter was related to their compensable injuries.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on February 10, 2023. The representative presented the argument the worker required the scooter to help with mobility as a result of their compensable left knee injury. On April 26, 2023, Review Office determined the worker was not entitled to reimbursement for a scooter. Review Office found the medical evidence on file did not support the worker’s requirement for a scooter in relation to their compensable injuries.

The worker’s representative filed an appeal with the Appeal Commission on November 27, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On April 24, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workmen's Compensation Act (the "Act") as it was titled at the date of accident, 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 3(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. Section 22(1) of the Act allows the WCB to provide medical aid “as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury…” Section 22(10) provides that medical aid "shall at all times be subject to the supervision and control of the board…"

The WCB established Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) to define key terms and set out general principles regarding a worker's entitlement to medical aid. The Medical Aid Policy outlines that medical aid includes treatment or services provided by healthcare providers and sets out the general principles governing the WCB's funding of medical aid, including 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 Medical Aid Policy further indicates at Schedule B 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 WCB will fund medical devices and appliances if:

1. The medical device or appliance is prescribed or recommended by a recognized heath 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 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 WCB Board of Directors has established Policy 44.120.30, Support for Daily Living (the "SDL Policy"), which applies for all decisions on or after March 1, 2014. The "Policy Purpose" section of the Policy 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 SDL Policy provides that decisions about whether to provide assistance, as well as about the type, level and duration of assistance, are made on a case-by-case basis, but that all decisions are guided by a number of general criteria. These criteria include that the assistance should compensate in the most cost-effective way possible for additional costs the worker incurs in engaging in the activities required for daily living that they engaged in prior to the injury, where those costs arise because of the injury.

Under the heading "Forms of Assistance", the SDL Policy provides, in part, as follows:

2. Independent Living

Assistance may be provided for services that allow an injured worker to live safely and independently in his or her home, including lawn care, snow shoveling, and other tasks that help meet this aim. 

… 

8. Exceptional Circumstances

In exceptional circumstances the WCB may provide assistance beyond what is outlined in this policy. This includes but is not limited to situations where a worker has a severe and permanent injury, such as paraplegia / quadriplegia, a significant brain injury, serious mental health difficulties, major limb amputations, or a similar injury that necessitates special assistance to reduce the effects of the handicap. All such assistance is provided on a case-by-case basis with the approval of the Director or designate.

Administrative Guidelines, as set out in the SDL Policy, build on the general criteria and parameters outlined in the SDL Policy to provide more specific guidance on decision-making. With respect to the Independent Living Assistance, the Guidelines indicate that the level of assistance is based on grids developed by the WCB for this purpose, and that one of two methods is generally used for administering the assistance, based on whether the assistance is short-term or long-term. The Guidelines indicate that "Where assistance is long-term, an allowance is provided to the worker to pay providers."

Worker’s Position

It should be noted that the worker had unfortunately passed away prior to the hearing and thus the appeal was being made on behalf of the worker’s estate. The worker’s estate was represented by a representative, the worker’s family member, who provided several written submissions in advance of the hearing and made an oral presentation to the panel.

The position of the worker's estate is that the purchase of a mobility scooter was consistent with the SDL Policy and was required to assist the worker to leave their home independently, to which the worker is entitled, and the estate’s appeal should be allowed. The position of the worker's estate was that the worker’s General Practitioner felt that both a mobility scooter and a wheelchair were both necessary next steps in assisting the worker with their mobility issues. The worker’s representative noted that the mobility scooter was purchased in September 2022, although the prescription for the scooter was written in June 2023. The worker’s representative indicated that the delay in obtaining the prescription was due to their inability to touch base with the worker’s General Practitioner.

The worker representative also noted that a WCB rehabilitation specialist was supposed to assess the worker’s home, however, this assessment was postponed due to the worker being in hospital and was not subsequently completed due to the worker passing away.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the purchase of a mobility scooter. For the appeal to be successful, the panel must find that support for the purchase of a mobility scooter to assist the worker in independent living is consistent with the Act and WCB Policies. Based on our review and consideration of all of the evidence and submissions which are before us, and for the reasons that follow, the panel is unable to make that finding.

As indicated above, the panel requested additional medical information from the worker’s General Practitioner to determine the relationship between the compensable injury and the need for the mobility scooter. This request for further information was conducted in part because the prescription written by the worker’s General Practitioner indicated that the prescription was given due to the worker’s spinal stenosis and osteoarthritis. Further the panel asked the worker’s General Practitioner to clarify why the worker needed a mobility scooter in addition to a standard wheelchair. In response the worker’s General Practitioner indicated that the prescription for the mobility scooter was due to the worker’s recurrent falls related to their spinal stenosis and ongoing pain and stiffness of the left knee. No further explanation was provided by the worker’s General Practitioner.

In assessing the worker's entitlement to independent living assistance in this case, the panel has reviewed the medical evidence on file and finds that the medical evidence on file does not support the need for a mobility scooter. The worker’s General Practitioner indicated that the mobility scooter was prescribed due to the worker’s recurrent falls related to their spinal stenosis and ongoing pain and stiffness of the left knee. Upon reviewing the file, the panel finds that the worker’s spinal stenosis was not related to the compensable injury and there was no indication that there was osteoarthritis related to the compensable injury. It is the panel’s understanding that the worker suffered from a certain degree of pain and stiffness in their left knee, however, this does not necessitate a mobility scooter.

The panel further notes that, as indicated above, Administrative Guidelines under the SDL Policy outline that the level of independent living assistance is based on grids developed by the WCB for this purpose and the general method or norm for administering long-term assistance is to provide an allowance to a worker to pay service providers. The panel notes that a personal care attendant for the worker to assist them in daily living was not considered by WCB in these circumstances, likely because the WCB had not had the opportunity to conduct an assessment of the worker’s home and surrounding areas or of the particular medical aid device that was being requested. The worker’s family purchased the mobility scooter for the worker prior to any assessment(s) being done, which could have included a cost benefit analysis. In fact, the mobility scooter was purchased even prior to obtaining a prescription for the mobility scooter, which was obtained from the worker’s General Practitioner via telephone without the benefit of the physician actually assessing the worker in person.

Based on the foregoing, the panel finds that support for the purchase of a mobility scooter to support the worker’s independent living is not consistent with the requirements of the Act and the WCB policies. The panel therefore finds that responsibility should not be accepted for the purchase of a mobility scooter.

The worker's appeal is dismissed.

Panel Members

N. Smith, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

N. Smith - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of May, 2024

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