WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2004 ONWSIAT 2785 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2070/04 [1] This written appeal was conducted in Toronto on December 3, 2004, by Tribunal Vice-Chair R. McClellan. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer ( ARO ), Mr Gowans, dated June 3, That decision concluded that the worker did not have entitlement to a home stair lift. [3] The worker was represented by Mr Chris Topple, consultant. The employer was represented by Mr Dennis Carter, consultant. THE RECORD [4] The material in the Case Record prepared by the Office of the Vice-Chair Registrar (Exhibit #1) was considered. In addition, I considered: Exhibit #2: Case Record Addendum No. 1; Exhibit #3: Case Record Addendum No. 2; Exhibit #4: Case Record Addendum No. 3; Exhibit #5: letter from OVCR; Exhibit #6: letter from OVCR. [5] Written submissions were made by Mr. Topple and Mr. Carter. THE ISSUES [6] The question before the Vice-Chair is whether the worker has entitlement to a home stair lift. THE REASONS (i) Background [7] The worker is a 60-year-old injured worker who receives a 45 per cent permanent partial disability award for low back injury sustained as a result of an accident in The worker's permanent disability award was increased from 35% to 45% following spinal fusion surgery in December 2001.

2 Page: 2 Decision No. 2070/04 [8] In his decision, the ARO cited Board Operation Policy Manual ( OPM ), Document # , and OPM Document # , and denied entitlement to the stair lift on the grounds that the worker did not meet the entitlement criteria, under these policies, of being a severely impaired worker. The policies defined severely impaired worker, injured prior to 1990, as a worker who has a permanent disability award totalling 100%. The ARO also denied entitlement as a Health Care benefit under OPM# , on two grounds; that the worker's back condition did not have a neurological component that would endanger the worker should he attempt to use stairs; and that the worker's non-compensable conditions were the reason he required a stair lift. [9] The cost of the Acorn Superglide Stairlift was $4250, according to the written estimate found in the Case Record. (ii) The medical evidence [10] On August 21, 2001, the worker was given a pension disability assessment by Board medical consultant Dr. Djan. Dr. Djan identified the following non-compensable conditions: coronary artery disease requiring angioplasty, hypertension, hyperlipidaemia, diabetes, angina, sleep apnoea and lupus. [11] The post surgery report dated December 10, 2001 from Dr. Moulton, St. Michael's Hospital, advised that the worker had suffered a mild myocardial infarction immediately after the L3/L5 laminectomy and fusion. [12] A note dated April 22, 2002 from the family physician, Dr. Farber reads: Due to diagnosis of severe degenerative disc disease lumbar spine [the worker] requires a stair lift two-go up and down. [13] A pension reassessment examination was conducted on February 6, 2003 by Board medical consultant Dr. D Souza. Dr. D Souza reported that the worker's general health was poor: he had three heart attacks prior to the recent surgery and three attacks of angina plus a suspected mild heart attack since the surgery. He had lupus of the left foot, psoriasis, obesity, and used Nitro to control chest pain. He also had sleep apnoea, rheumatoid arthritis and osteoarthritis. [14] Dr. D Souza reported, "currently [the worker] uses the stairs by going down on his bottom." [15] The worker reportedly advised Dr. D Souza that the surgery had only helped initially. The worker used a motorised scooter for travel. His pain was located in the low back, the lumbar area and the shoulders, both legs and feet, and his knees give out when he walks. The surgery did not strengthen his legs. [16] In Board Memo #231, dated October 22, 2002, Board medical consultant Dr. Garg advised that: There is no evidence of neurological findings to indicate that the worker requires a stair lift and the stair left does not appear in order for a compensable condition.

3 Page: 3 Decision No. 2070/04 [17] Dr. Garg was also on record, in Board Memo #214, dated February 5, 2002, as being opposed to any pension award above 20%. (iii) Prior Health Care Benefits [18] In a prior ARO decision dated January 7, 2002, the ARO granted entitlement to the payment for running boards to be placed on the worker's van, on the stated grounds that; This modification to the worker's vehicle would facilitate independent living and eliminate aggravation to his back and is therefore appropriate. [19] The policy reference was to OPM, Document # , Entitlement and Definitions. The cost was $ [20] On April 11, 2002, the Board approved the cost of washroom grab bars at $ [21] On June 13, 2001, the Board approved the cost of electrodes for the worker's TENS unit at $144. [22] On January 26, 2000, the Board paid the cost of the worker's steel back Harris Brace, at $ [23] The worker advised the Board on January 5, 1998 that he used a walker inside the house, as well as two canes, and used a scooter for travel outside the house. (iv) Submissions of the worker s representative [24] In a letter dated July 16, 2004, Mr. Topple submitted that the worker's back injury is his principal impairment with no evidence indicating otherwise. The worker's degenerative arthritis condition has been deemed compensable, his condition is severe and Board policy and practice warrant entitlement to the stair lift device. (v) Submissions of the employer's representative [25] The employer's representative, Mr. Carter, submitted that evidence in the Case Record from Dr. D Souza indicated that it was the worker s angina condition which led to the stair lift request. He said that the opinion of Dr. Garg who advised against entitlement for the stair left. He cited Board OPM, Document # , and and concluded that the stair lift request related to the worker's non-compensable conditions rather than the work related injury. (vi) Law and policy [26] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect. However, pursuant to section 102 of the WSIA, the Workers' Compensation Act continues to apply to pre-1998 injuries. Thus the pre-1985 Act, pre-1989 Act and pre-1997 Act continue to apply, as amended by the WSIA. Specifically, sections 52 and 54 of the pre-1985 Act govern the worker s entitlement in this case. 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,

4 Page: 4 Decision No. 2070/04 (a) to such medical aid 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. (2) In this Act, "medical aid" means medical, surgical, optometrical and dental aid, the aid of drugless practitioners under the Drugless Practitioners Act, the aid of chiropodists under the Chiropody Act, hospital and skilled nursing services, such artificial members and such appliances or apparatus as may be necessary as a result of the injury and the replacement or repair thereof when deemed necessary by the Board. (6) All questions as to the necessity, character and sufficiency of any medical aid furnished or to be furnished and as to payment for medical aid shall be determined by the Board. 54 To aid in getting injured workers back to work and to assist in lessening or removing any handicap resulting from their injuries, the Board may take such measures and make such expenditures as it may deem necessary or expedient, and the expense thereof shall be borne, in Schedule 1 cases, out of the accident fund and, in Schedule 2 cases, by the employer individually, and may be collected in the same manner as compensation or expenses of administration. [27] Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. We have considered these policies as necessary in deciding this appeal discussed in more detail below. (vii) The Vice-Chair's conclusions [28] Board policy respecting the provision of Health Care devices, such as the stair lift being requested in this case, are governed by the provisions of three separate Board policy documents. [29] First, OPM, Document # , Entitlement and Definitions, states that; A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury. [30] The definition of Health care includes the following: modifications to a persons home and vehicle and other measures to facilitate Independent living which are appropriate in the WSIB's opinion. [31] Second, OPM, Document # , Independent Living Allowance, authorises the payment of the Independent Living Allowance, to "severely impaired worker's" in the form of an annual allowance which can be used to offset the cost of devices costing less than $250, in order to improve quality of life and independence. Again, a severely impaired worker is one whose permanent disability award, for a pre-1990 accident, is at least 100 per cent. [32] Third, OPM, Document # , Independent Living Devices, authorises the payment of the cost of Independent Living Device costing more than $250 to a severely impaired worker, as defined above.

5 Page: 5 Decision No. 2070/04 [33] OPM, Document # and # establish that a "severely impaired worker", as defined, who meets the criteria listed in the policy, has entitlement as of right to the Independent Living Allowance and the Independent Living Device, by virtue of his/her status as a severely impaired worker. The entitlement criteria section reads as follows: Entitlement criteria The WSIB reimburses a severely impaired worker for a device if it helps restore a worker's ability to - communicate - be mobile - engage in self-care - avoid further injury, or - prevent future health complications due to the work-related injury is not intended to accomplish any of the objectives of the services covered by the independent living allowance (if the worker is receiving the allowance) meets a permanent or long-term need is appropriate, given the nature of the worker's impairment and functional limitations (e.g., it can be used safely and effectively) is prescribed or recommended by a health care practitioner is reasonable in terms of costs and anticipated benefits is cost-effective considering alternatives on the market meets performance standards generally accepted by medical or clinical rehabilitation specialists, and is certified by the Canadian Standards Association (C.S.A.) or meets other applicable safety standards. Independent Living Devices - Eligible devices: These include automatic page turners "Easylift" or "Veculator"-type chairs environmental controls hobby/sports equipment (see p.3) modification or purchase of suitable bicycles motorized scooters personal computers to enhance communication, and for therapeutic reasons for workers with severe head injuries remote vehicle starters special alert telephones special prosthetic devices hospital beds, chairs, mattresses, and sports wheelchairs.

6 Page: 6 Decision No. 2070/04 NOTE. This list is not exhaustive. [34] OPM, Document # permits the Board to provide an array of health care benefits, specifically including modifications to a person s home or vehicle to facilitate Independent living, through the exercise of the Board's administrative discretion. The criteria to be used by the Board determining a worker's entitlement under this policy are specified as, "such health care as may be necessary, appropriate and sufficient as a result of the injury." [35] In the case before us, the worker has already been awarded health care benefits under the provisions of OPM, Document # The worker was awarded the cost of installing a running board on his van, explicitly under the authority of OPM, Document # , by decision of the Appeals Resolution Officer. The cost was $ The worker was also awarded the cost of installing bathroom grab bars in his home under the same policy, at a cost of $325. He was also provided with a steel Brace costing $511.12, as well as electrodes for his TENS exercise machine. [36] In the decision denying entitlement for a stair lift under OPM, Document # , the ARO based the decision on a finding that there was no neurological component of the worker's back condition and therefore nothing to, "endanger the worker and put him in possible danger." With respect, the provisions of OPM, Document # say nothing about the risk of danger as one of the criteria for entitlement to a home modification. The criteria for entitlement to health care benefits, including "modifications to a persons home and vehicle and other measures to facilitate Independent living" are that, in the Board's opinion, the benefit is "necessary, appropriate and sufficient as a result of the injury." [37] In the case before me, worker's disability is rated at 45%, which is an exceptionally high level for pre-1990 permanent disability awards to the back. The evidence is that the worker cannot walk without the aid of a walker or a scooter because of his back injury. He is unable to navigate the stairs in his own home except by sliding down step by step on his bottom. This is not because of his angina or his diabetes; it is, according to the medical evidence, because he cannot walk normally due to the effects of his compensable back condition. The Board has already recognised this fact when it authorised a modification to the worker's van and paid for the cost of installing a running board so that the worker could more easily get in and out of his vehicle with his motorised scooter. This payment was authorised under precisely the same clause in OPM, Document # as that which authorises modifications to a person s home. It was authorised for precisely the reason as the request before me, that it was necessary and appropriate to facilitate independent living. As with the request for a stair lift, the vehicle modification was prescribed by the family physician Dr. Farber. [38] I find that it is necessary and appropriate, that this worker, who is incapable of using the stairs in his own home because of his compensable back condition, is entitled to the provision of the stair lift, to facilitate independent living in his own home, as recommended by his treating physician. [39] The Board is directed to pay the full cost of the purchase and installation of a stair lift in the worker's home, as a health care benefit under the authority of OPM, Document #

7 Page: 7 Decision No. 2070/04 [40] In the circumstance, I find it necessary to consider the worker s entitlement under OPM, Document # and # THE DECISION [41] The appeal is allowed. [42] The Board is directed to pay the full cost of the purchase and installation of a stair lift in the worker's home, as a health care benefit under the authority of OPM, Document # DATED: This 30 th day of December SIGNED: R. McClellan.