WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1085/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1085/14 BEFORE: R. McCutcheon: Vice-Chair HEARING: May 22, 2014 at Toronto Written DATE OF DECISION: August 15, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1762 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) R. Nestereiczyk dated December 31, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Mr. G. Newhouse, Lawyer Not participating Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1085/14 REASONS (i) Introduction to the appeal [1] The worker appeals a decision of the ARO, which concluded that she was not entitled to a clothing allowance from The ARO rendered a decision based upon the written record without an oral hearing. The worker's representative agreed to proceed by way of written submissions at the Tribunal. The worker's representative filed written submissions dated December 9, [2] The now 64 year old worker was injured on November 3, 1988, in the course of her employment as a deli clerk in a supermarket. She slipped and fell on a wet and greasy floor and injured her low back. The worker did not return to work with the accident employer on a long-term basis, but she did find alternative employment over the years. [3] The worker was assessed by Dr. R.A. McKnight, physiatrist, in June 1990, who made a number of recommendations, including: acquisition and judicious use of a light weight lumbar support to be worn only on the job. Dr. McKnight wrote a corresponding prescription for a flexible, light weight lumbar support/brace. In a letter to the Board in December 1990, the worker noted that she tried to claim reimbursement for a back brace as recommended by Dr. McKnight, but it was not approved by the Board. [4] The Board recognized that the worker had a permanent disability as a result of the injury and assessed a 10% permanent disability pension in October 1994, with full arrears to the date of accident. The diagnosis was herniated disc at L2-3 and mechanical factors at the L4-5 level. Dr. R.G. Redfearn, Regional Medical Advisor, noted that treatment at that time was with bracing and home exercises. [5] The worker s low back condition worsened and her pension was increased to 15%, effective from November 2000; the pension was further increased to 20%, with arrears from December Most recently, the worker s pension was increased to 23% with an arrears date of March 20, The worker also received temporary total disability benefits for various periods in which the Board recognized a recurrence of her compensable condition. She continued working until 2007, when her back condition worsened. [6] The worker filed a Clothing Allowance Application in February 2011, which was denied. (ii) The issue [7] The issue is the worker s entitlement to a clothing allowance from [8] The WSIB s denial of the worker s claim for a clothing allowance turned on the fact that the worker uses a lumbosacral support with plastic stays, rather than steel stays. In the adjudication of this case, the WSIB has interpreted Board policy to exclude entitlement to a clothing allowance for the use of a lumbosacral support without steels stays. The worker's representative submits that the worker falls within the exceptions specified in applicable Board policy and her appeal ought to be allowed on that basis.

3 Page: 2 Decision No. 1085/14 (iii) Law and policy [9] Since the worker was injured in 1988, the pre-1989 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre Act, as amended, unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the "WSIA") also apply to the appeal. [10] Section 52 of the pre-1989 Act governs the worker s entitlement to health care benefits and states in part: 52(1) Every worker who is entitled to compensation under this Part or who would have been so entitled had he been disabled beyond the day of the accident is entitled, (a) to such health care as may be necessary as a result of the injury; (b) to make the initial choice of doctor or other qualified practitioner for the purposes of this section; (c) [ ] where, in the opinion of the Board, he is rendered helpless through permanent total disability, to such other treatment, services or attendance as may be necessary as a result of the injury. (3) The Board may pay and, where the employer is individually liable, the Board may order the employer to pay, (a) for the replacement or repair of an artificial member or apparatus of a worker that is damaged as a result of an accident in the employment; and (b) on application, an allowance not exceeding $368 a year for the replacement or repair of clothing worn or damaged by reason of the wearing of a lower limb prosthesis or a back brace for a permanent back disability or a permanent leg brace, and not exceeding $184 a year in respect of an upper limb prosthesis where the lower or upper limb prosthesis, back brace or permanent leg brace is supplied by the Board, and where the worker is unable to work because of the damage referred to in clause (a), he is entitled to compensation as though the inability to work had been caused by a personal injury within the meaning of subsection 3(1). [11] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: #94 Clothing Allowance; #300 Decision Making/Benefit of Doubt/Merits and Justice. [12] I have considered these policies as necessary in deciding the issues in this appeal, in particular, Operational Policy Manual (OPM) Document No , Clothing Allowance. 1 The relevant policy guidelines state: Guidelines To be considered for a first clothing allowance 1 Published January 3, The policy states that it applies to all decisions made on or after January 1, 2006, for all accidents.

4 Page: 3 Decision No. 1085/14 the worker must have reached maximum medical recovery (MMR), and have a permanent impairment/disability that results in either a non-economic loss (NEL) benefit, or a permanent disability (PD) benefit the WSIB must have authorized and/or supplied the device the worker must have worn the device one full year after receiving the permanent impairment/disability benefit. Applying for the allowance Workers must apply annually for a clothing allowance by submitting a written application and information indicating the type of damage to the clothing. Entitlement criteria Workers applying for a clothing allowance must annually submit a report from the treating health professional indicating NOTE the objective clinical findings confirming the continuing need for the device, and that the worker is wearing the device with the same frequency as was prescribed. The WSIB retains the right to determine the appropriateness of all health care and to request the report be completed by an orthopaedic specialist when necessary. [13] For claims that do not meet the above-noted entitlement criteria, the policy provides for entitlement to a clothing allowance provided that specified exceptions are met: Exceptions Exceptions may be made for workers who do not meet the entitlement criteria, and began using the device before November 1, 1996, and continue to be dependent on the device. Entitlement to the device and the related clothing allowance continues as long as the treating health professional's clinical report authorizes the continued use of the device. When exceptions are made, the WSIB may recommend other types of treatment to help reduce dependency on the device. This treatment must be designed to return the worker to MMR after the use of the device is reduced or discontinued. A clothing allowance restored under the exceptions category is payable as of the worker's 1999 NEL/PD anniversary date for the preceding 12 months only. [14] The 2006 Clothing Allowance policy distinguishes between upper body and lower body devices and provides lists of devices: Upper/lower body devices Devices are considered to be either upper body or lower body, based on the clothing (e.g., shirts or pants) to which they cause the most damage. Clothing allowance payments must relate to a reasonable pattern of clothing deterioration caused by wearing the approved devices. Regardless of the number of devices approved by the WSIB, the worker is allowed only one clothing allowance for an upper body device and one for a lower body device per year. The following are considered upper body devices: back brace back support or corset

5 Page: 4 Decision No. 1085/14 cervical brace arm prosthesis under-arm crutches arm brace wrist gauntlet(s) forearm-supported crutches, and wheelchair. The following are considered lower body devices: leg prosthesis knee brace, and permanent leg brace. [15] I note that the list of upper body devices includes a back brace and a back support or corset, without any specification regarding steel stays. The policy reference to a back brace with steel stays appears in the section of the policy that addresses the quantum of benefits: Schedule of benefits The WSIB classifies devices according to the amount of clothing damage they usually cause. This determination is made based on input from orthotic specialists and product manufacturers. The WSIB may pay a clothing allowance for NOTE devices which cause major damage to clothing up to the maximum rate annually for major damage, and devices which cause minor damage to clothing up to the maximum rate annually for minor damage. For the current maximum rates for major damage and minor damage, see , Table of Rates. The following qualify as devices which can cause major damage to clothing *NOTE back brace (Harris-type rigid frame e.g., rigid plastic with steel stays to support back) back support or corset (canvas belt/corset with steel stays to support back)* leg prostheses custom-made knee brace permanent leg brace, and manual wheelchair. A clothing allowance benefit for a back support or corset is paid up to the maximum rate for major damage, as of the worker's 2006 NEL/PD anniversary date, for the preceding 12 months only. The following qualify as devices which can cause minor damage to clothing

6 Page: 5 Decision No. 1085/14 cervical brace arm prostheses arm brace wrist gauntlet(s) forearm-supported crutches off-the-shelf knee brace such as the "Generation 2" power wheelchair, and [Emphasis added] under-arm crutches. [16] The Clothing Allowance policy cross-references OPM Document No , which provides the following rates for the payment of a clothing allowance: Clothing Allowance Benefit Rate Policy Document minor damage $ max. major damage $ max (iv) The WSIB s adjudication of the worker s claim for a clothing allowance [17] In a decision dated May 3, 2011, the WSIB Health Care Payment representative denied the worker s request for a clothing allowance, finding that the worker s claim did not meet the eligibility requirements of Board policy. That decision indicated that a worker is entitled to a clothing allowance when the following criteria are met: The worker has a permanent impairment as a result of an occupational injury and is in receipt of a permanent disability or non-economic loss (NEL) award. The worker has worn their orthotic device for at least one year after receiving their permanent disability or NEL award. Clothing worn is damaged as a result of the worker wearing the orthotic item, which has been authorized by the WSIB. There is sufficient medical evidence to support that the worker must use the orthotic device for the treatment of the occupational injury. There is sufficient evidence to support that the orthotic item is being worn on a regular basis as part of normal daily living. This means wearing a brace either at home, at work, or a combination of both. [18] The Health Care Payment Representative denied entitlement to a clothing allowance on the basis that the worker s back brace did not qualify as an orthotic device, due to the absence of steel stays. It is undisputed in this case that the worker has used lumbosacral supports which contained plastic, rather than steel, stays. [19] In the decision under appeal, the ARO upheld the denial of the clothing allowance reasoning as follows: Operational policy , Clothing Allowance, applies to all decisions made on or after January 1, 2006 for all accidents. The worker seems to have applied for the clothing

7 Page: 6 Decision No. 1085/14 allowance for the first time in Her doctor indicated that she had worn a back brace since The WSIB health care payment representative denied the claim for clothing allowance on the grounds the back brace that the worker uses does not have steel stays and therefore, is not a device that causes clothing damage. The worker has not offered any evidence to the contrary. Instead, her representative maintains that the worker qualifies for a clothing allowance on the basis of the Exceptions portion of the entitlement criteria. The Entitlement Criteria require an annual report from the treating health professional that outlines the objective clinical findings supporting the need for the orthotic device and that confirms the applicant is wearing the device with the same frequency as prescribed. According to the policy, exceptions may be made for applicants who do not meet these entitlement criteria but began using the orthotic device before November 1, 1996 and continue to be dependent on it. Entitlement to the device and the related clothing allowance continues as long as the treating health professional s clinical report authorizes the continued use of the device. The WSIB health care payment representative did not specifically address whether the worker met the policy entitlement criteria. I have to assume by her silence on the matter that the worker did so and the grounds for denial of the clothing allowance reside solely in the type of back brace that the worker is using. If this is so, the Exceptions portion of the policy does not apply in this instance. The worker s representative maintained that the worker had been using a back brace before November 1, 1996 and cited a reference to her using a brace in 1994 in support of his assertion. See P.D. assessment of October 3, Therefore, in his view, entitlement to the device and the clothing allowance would continue as long as the treating health professional supported the continued use of the device. [ ] The file record shows that the worker was prescribed a brace ( no steels ) on June 12, 1990 and April 30, 1991 and then not again until ten years later on February 26, 2001 ( no steels ). According to the October 3, 1994 P.D. Assessment, the worker said she only used a lumbosacral support at times. There is no record of any new prescription for a back brace after February 2001 until her general practitioner wrote to the WSIB in December 2010 to say the worker had been wearing a back brace since 2009 and it had worn out. This evidence suggests that the worker s use of the back brace was somewhat infrequent before 2009 and there is no evidence currently on file to show that she was dependent upon it before then. More importantly, however, there is no evidence that WSIB health care payment representative specifically addressed the worker s clothing allowance entitlement before Under these circumstances, the exceptions portion of the current policy does not apply in the decision whether to grant a clothing allowance since [20] The ARO concluded: Under the current policy, the worker is not entitled to a clothing allowance since 2010 because there is no evidence that the type of back brace that she uses could damage her clothing. (v) Submissions [21] In written submissions, the worker's representative provided a summary of the evidence demonstrating that the worker has used a back brace since The worker's representative goes on to submit: It is well known that for many years the Board paid clothing allowances for clothing damage caused by a back brace without steel stays. [The worker's] back braces have

8 Page: 7 Decision No. 1085/14 never had steel stays. If she had applied for a clothing allowance before the policy change, there would have been no issue regarding steel stays vs. plastic stays. The 2006 policy imposed this steel stays entitlement criterion. [22] The worker's representative cites the exception contained in Board policy, quoted above, and submits that the worker began using the equivalent of her current device (a back support without steels stays) by at least 1991, and well before November 1, In the worker's representative s submission, the medical reporting supports that the worker continues to be dependent on the device. In his submission, the worker meets the exception for entitlement to a clothing allowance for a back support lacking steel stays and the appeal ought to be allowed on this basis. (vi) Conclusions and analysis [23] The appeal is allowed for the reasons that follow. [24] The WSIB s adjudication of this worker s claim for a clothing allowance has focused upon the fact that the worker uses a back brace without steel stays. The ARO, therefore, found that the worker s entitlement turns upon whether the claim fits within the exceptions enumerated in the 2006 Clothing Allowance policy. [25] Since the adjudication and submissions in this case have centered on the exceptions contained in Board policy, this analysis will follow that approach. As noted above, the Clothing Allowance policy sets out the following exceptions where the worker s claim does not meet the entitlement criteria: Exceptions Exceptions may be made for workers who do not meet the entitlement criteria, and began using the device before November 1, 1996, and continue to be dependent on the device. Entitlement to the device and the related clothing allowance continues as long as the treating health professional's clinical report authorizes the continued use of the device. When exceptions are made, the WSIB may recommend other types of treatment to help reduce dependency on the device. This treatment must be designed to return the worker to MMR after the use of the device is reduced or discontinued. [26] Upon review of the evidence, I am satisfied that worker s claim falls within the specified exception. The first question is whether the worker began using the device before November 1, The worker's representative provided a comprehensive summary of the documentation showing the worker s use of a back brace beginning in or about I note in particular the following evidence: Dr. McKnight, June 1990: Recommendations included acquisition and judicious use of a light weight lumbar support to be worn only on the job. Dr. McKnight wrote a corresponding prescription for one lumbar support/brace (flexible, light weight), dated June 12, The file includes an Invoice for a Camp #320 LumboSacro Brace 4 stays (no steels). The worker purchased the device on April 30, 1991.

9 Page: 8 Decision No. 1085/14 Dr. I.M. Vasovich, family doctor, June 1991: Dr. Vasovich wrote in support of the worker s request for a back brace, with reference to Dr. McKnight s prescription for a back brace and the recommendation contained in his June 1990 report, cited above. Board Memorandum, August 1991: This memorandum documents a conversation with the worker regarding her claim for ongoing entitlement as well as reimbursement for payment for a lumbar brace, purchased upon the recommendation of Dr. McKnight. Dr. Redfearn, pension examination report, October 1994: In describing the worker s presenting complaints, Dr. Redfearn noted that the worker could walk 15 minutes, sit 15 minutes with an Obus Forme, and stand 15 minutes. She had a lumbosacral support that she wore at times. As noted above, the diagnosis was herniated disc at L2-3 and mechanical factors at the L4-5 level. Treatment consisted of bracing and home exercise. [27] The foregoing reports demonstrate that the worker began using the device before November 1, 1996, as required to meet the Exceptions set out in Board policy. [28] The next question is whether the worker continue[d] to be dependent on the device, as specified in the second branch of the exception provision in Board policy. In this regard, the evidence shows that the worker continued to use and depend upon the back brace; as her compensable condition worsened, she became more dependent upon the device: Dr. Vasovich, February 2001: Dr. Vasovich prescribed a back brace for the worker. This note appears in the file together with a receipt for the worker s payment for a back brace. Dr. D.S. Dorcas, Pension Medical Consultant, and August 2005: Dr. Dorcas recommended that the worker s pension be increased from 15% to 20%. At that time, the worker was coping with a shortened work week and avoidance of heavy lifting. The worker had a Neoprene type back support without steel stays, which she wore approximately four hours per day. At that time, the worker was working in a ladies clothing store approximately 24 hours per week. Dr. D. Beasley, family physician, February 2010: Dr. Beasley provided an update on the worker s chronic low back pain. Despite the use of a back belt support, the pain persisted. The worker had resisted pain medication except Tylenol #3, which helped for a few hours. The worker was no longer able to work in retail sales with her pain. Physiotherapy had also helped somewhat. Dr. Beasley, December 2010: Dr. Beasley notes that the worker had required a back brace since 2009, which aided in pain control and management related to the workplace injury. The worker used a Universal Lumbo-Sacral Brace. Dr. Beasley noted that the Velcro mechanism wears out with time. Despite Dr. Beasley s reference to the worker s dependence on the back brace from 2009, the evidence demonstrates that the worker was dependent on a back brace before then. In my view, the reference to 2009 reflects that Dr. Beasley had become the worker s family doctor more recently, rather than a lack of dependence on a back brace at an earlier time. Dr. Beasley, March 2011, May 2011, and March 2013: These reports document a deterioration in the worker s condition, beginning in February Dr. Beasley noted that the worker s pain had slowly improved with physiotherapy treatment as well as use of a back brace and cane.

10 Page: 9 Decision No. 1085/14 [29] The pattern of the worker s use of the lumbosacral support, particularly as described in the 2005 pension examination report, is consistent with Dr. McKnight s original recommendation in 1990 for judicious use of the back support on the job. The worker s condition has deteriorated over time, resulting in more prolonged use of the lumbosacral support. This does not mean, however, that the worker was not dependent on the back brace at an earlier time. The evidence shows that the worker limited her use of medication to occasional use of Tylenol #3 before 2011; therefore, non-pharmacological alternatives, such as the back brace and physiotherapy, were instrumental in treating her pain and enabling her to continue working for almost 20 years after the workplace accident. In summary, the worker began using the back brace before 1996 and she was dependent upon it for maintaining her activity levels and employment. [30] Accordingly, I find that the worker is entitled to a clothing allowance pursuant to the Exceptions set out in Board policy.

11 Page: 10 Decision No. 1085/14 DISPOSITION [31] The appeal is allowed. The worker is entitled to a clothing allowance from 2010, onward. DATED: August 15, 2014 SIGNED: R. McCutcheon