WORKERS COMPENSATION APPEAL TRIBUNAL

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL INFORMATION] CASE ID # [PERSONAL INFORMATION] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #192 Appellant Respondent Maureen Peters, Worker Advisor, representing [PERSONAL INFORMATION] Brian Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing Thursday, April 3, 2014 Quality Inn on the Hill 150 Euston Street Charlottetown, Prince Edward Island Date of Decision July 8, 2014

2 WCAT Decision #192 Page 1 of 10 Facts and Background 1. On October 27, 2003, the Appellant was working as a labourer when he suffered a lower back injury. His claim was accepted for low back strain and possible sciatica injury. [Appeal Record Tabs 3 & 4] 2. The Appellant had lower back surgery, a L5-S1 microdisectomy on September 22, [Appeal Record Tab 5] 3. On December 5, 2006, the Appellant had an impairment assessment and was rated with a 28% whole person impairment. [Appeal Record Tab 5] 4. On September 10, 2009, the Appellant suffered a recurrence of his lower back injury. The diagnosis was recurrent L5-S1 disc herniation with pending surgery. On May 31, 2010 the Appellant underwent a second lower back surgery (L5 laminectomy and discectomy with fusion). [Appeal Record Tabs 8-10] 5. On December 16, 2010, the Appellant had a second impairment assessment and was rated with a 13% whole person impairment. [Appeal Record Tabs 8-11] 6. On May 7, 2013, the Appellant s family physician, Dr. Andrew MacLeod, submitted a report to the Workers Compensation Board (the Board ) with a request for custom orthotics. [Appeal Record Tab 19] 7. On May 10, 2013, the Case Coordinator informed the Appellant that she was not able to authorize orthotics under his claim, as the work injury did not involve a serious foot or ankle injury. [Appeal Record Tab 20]

3 WCAT Decision #192 Page 2 of The Appellant submitted a Request for Internal Reconsideration requesting a review of the decision of the Case Coordinator. The Request was received by the Board on August 27, [Appeal Record Tab 25] 9. On October 16, 2013, the Internal Reconsideration Officer ( the IRO ) issued decision #[PERSONAL INFORMATION], which denied the Appellant s request to have his orthotics covered under this claim. [Appeal Record Tab 1] 10. The Appellant appealed the decision of the IRO to the Workers Compensation Appeal Tribunal ( WCAT ) by way of Notice of Appeal dated November 15, [Appeal Record 2] Issue Is the worker entitled to coverage for orthotics under this claim? Appellant s Argument 11. The Appellant reviewed Section 18(1) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1 ( the Act ) which states as follows: The Board may provide any worker entitled to compensation under this Part with medical aid, and every such worker is entitled to such prosthetic appliances and to such dental appliances and apparatus as may be necessary as a result of any accident, and to have the same kept in repair or replaced in the discretion of the Board, and to such corrective lenses as may be necessary as a result of the injury, which corrective lenses may, in the discretion of the Board, be renewed from time to time. [Appellant s Factum & Authorities Tab 2] 12. The Appellant further reviewed Medical Aid as defined in Board Policy POL-92:

4 WCAT Decision #192 Page 3 of 10 Medical aid includes medical, surgical and dental aid, hospital and nursing services, chiropractic services provided by a registered chiropractor, occupation therapy and physiotherapy services provided by a licensed practitioner, x-ray and other treatment, drugs, dressings, appliances, apparatuses, transportation and other goods, services and things the Workers Compensation Board may authorize in promoting the medical rehabilitation of an injured worker. [Appellant s Factum & Authorities Tab 3] 13. The Appellant also reviewed Board Policy POL-30 Orthoses, Prostheses, and Assistive Devices, which states in part as follows: 1. All workers who require an orthosis, prosthesis, or assistive device as a result of a work injury or whose orthosis, prosthesis, or assistive device was damaged in a work injury are eligible for coverage. A worker s entitlement to an orthosis, prosthesis, or assistive device will be determined on an individual basis. 2. The primary responsibility of the Workers Compensation Board is to provide orthoses, prostheses, and assistive devices that treat the compensable injury and improve. [Appellant s Factum & Authorities Tab 4] 14. The Appellant s position was that his need for orthotics was directly related to the compensable back injury, and therefore coverage should be provided. The Appellant submitted his family physician, Dr. Andrew MacLeod s, letter of August 24, 2012 which stated, It is my opinion that [PERSONAL INFORMATION] foot pain is caused by his chronic L5 radiculopathy which is a result of his back injury. [Appellant s Factum & Authorities Tabs 1 and 2] 15. The Appellant further commented that although Dr. O Brien, the Board s medical advisor, concluded that the need for custom orthotics would not be related to the compensable injury, Dr. MacLeod s evidence should be given more weight, given that he was more familiar with the Appellant s history and actually examined him. Further, the Appellant argued that, in the alternative, if the evidence for and against the issue was at

5 WCAT Decision #192 Page 4 of 10 least equal in weight, pursuant to Section 17 of the Act, the Appellant should be given the benefit of the doubt, and the matter should be decided in his favour. [Appellant s Factum & Authorities Tabs 1 & 2] Respondent s Argument 16. The Respondent s argument was that it denied the request on the basis that the need for orthotics was related to a non-compensable condition rather than to the lower back injury for which the Appellant s claim was accepted. 17. The Respondent reviewed Sections 18 (2) and 18 (3) which state: (2) The medical aid is at all times subject to the supervision and control of the Board and shall be paid for by the Board out of the Accident Fund, and such amount as the Board may consider necessary therefore shall be included in the assessment levied upon the employers. (3) All questions as to the necessity, character, and sufficiency of any medical aid furnished or any vocational or occupational rehabilitation shall be determined by the Board. [Factum Tab 2] 18. The Respondent also relied on Board Policy POL-92 at paragraph 3 which states: All medical aid including requests for surgery, Cat Scans, Magnetic Resonance Imaging (MRI), and other medical aid must be pre-approved by the Workers Compensation Board. Medical aid provided in emergencies, or as provided for under contract with the Workers Compensation Board, may be approved after the medical aid is provided. [Factum Tab 3] 19. The Respondent further provided for consideration of Board Policy POL-30 at paragraphs 13 & 14 which state:

6 WCAT Decision #192 Page 5 of The Workers Compensation Board will approve the cost of orthopaedic footwear, on a case by case basis, when the worker has an impairment to his/her ankle or foot as a result of a compensable workplace injury and standard footwear cannot be adequately adapted. For other types of injuries where there is impairment, the decision will be made on a case by case basis. 14. Where a worker has suffered a serious foot or ankle injury resulting in functional impact to the lower extremity and, based on medical evidence, requires modifications to his/her existing footwear such as inserts, wedges, lifts and metatarsal bars, or custom orthotic inserts, the costs may be covered by the Workers Compensation Board. [Factum Tab 4] 20. The Respondent sought and relied upon the medical opinion from Dr. Steven O Brien as to whether the Appellant s injury accepted under the claim would support orthotics. [Appeal Record Tab 22] 21. Dr. O Brien, in his opinion of June 26, 2013, stated that the diagnosis and the problem being addressed was left foot metatarsalgia. Dr. O Brien noted that the metatarsalgia or inflammation was not related to the workplace injury that initiated the claim. [Appeal Record Tab 22] 22. The Respondent submitted that the evidence of Dr. O Brien was unequivocal when he stated there was no connection between the need for orthotics and the original workplace injury. The Respondent also submitted that Dr. MacLeod did not necessarily link the need for custom orthotics with back injury and lumbar herniation. He used the words with his symptoms. The Respondent suggested that this did not provide the necessary objective medical evidence to link the need for orthotics with the original workplace injury as it was ambiguous. 23. The Respondent further commented that with regard to POL-30, the Board could not approve the cost of orthotic footwear because the Appellant did not have an

7 WCAT Decision #192 Page 6 of 10 impairment to his ankle or foot as a result of compensable workplace injury as required per paragraph 13 and, therefore, did not suffer a serious foot or ankle injury as required by paragraph The Respondent argued that Section 17 of the Act had no application where there was a lack of evidence establishing a connection between the Appellant s injury and the need for the orthotics. 25. The Respondent submitted that Section 18(3) required considerable deference around questions of appropriate medical aid, be it the need for orthotics or any other type of medical aid and argued that there was inadequate evidence to support the position that orthotics would alleviate the Appellant s symptoms of back pain. Analysis/Decision Is the worker entitled to coverage for orthotics under this claim? 26. The Workers Compensation Appeal Tribunal is created pursuant to the provisions of the Workers Compensation Act, R.S. P.E.I. 1988, Cap. W-7.1 as amended (the Act ). Section 56(17) of the Act states that the Tribunal is bound by both the Act as well as the policies of the Board. 27. The Appellant is seeking medical aid coverage for orthotics in relation to pain or injury he suffered to his left foot. The Board denied the request on the basis that the need for orthotics was related to a non-compensable condition, rather than to the lower back injury for which the Appellant s claim was accepted. 28. On October 27, 2003, the Appellant was working as a labourer when he suffered a lower back injury. His claim was accepted for low back strain and possible sciatica injury.

8 WCAT Decision #192 Page 7 of 10 The Appellant had lower back surgery and was assessed to have a 28% permanent medical impairment on December 5, On September 10, 2009, the Appellant suffered a recurrence of his lower back injury. He underwent a second lower back surgery (L5 laminectomy and discectomy with fusion) on May 31, The provision of medical aid is governed by Section 18 of the Act. Section 18 (1) states, the Board may provide any worker entitled to compensation under this Part, with medical aid, 31. Medical Aid as defined by Board Policy POL-92: includes medical, surgical and dental aid drugs, dressings, appliances, apparatuses, transportation and other goods, services and things the Workers Compensation Board may authorize in promoting the medical rehabilitation of an injured worker. 32. Board Policy, POL-30 in part states: 1 A workers entitlement to an orthosis, prosthesis, or assistive device will be determined on an individual basis. 2. The primary responsibility of the Workers Compensation Board is to provide orthoses, prostheses, and assistive devices that treat the compensable injury and improve the worker s functioning for return to work and activities of daily living. POL-30 defines Orthosis as: Orthosis means a device which is designed to prevent or correct deformities, to protect painful body parts or to improve the function of a limb. It includes orthopaedic devices, orthotic devices and footwear.

9 WCAT Decision #192 Page 8 of Paragraph 13 of POL-30 states the following: The Workers Compensation Board will approve the cost of orthopaedic footwear, on a case by case basis, when the worker has impairment to his/her ankle or foot as a result of a compensable workplace injury and standard footwear cannot be adequately adapted. For other types of injuries where there is impairment, the decision will be made on a case by case basis. 34. Dr. Andrew MacLeod s physician s report Form 8, signed July 20, 2012, received July 23, 2012, stated the examination findings were, chronic pain/foot pain, part of body injured was the back and the diagnosis was disc herniation. [Appeal Record Tab 16] 35. On August 1, 2012, Gloria Laybolt, the Case Coordinator, sent a letter to Dr. MacLeod regarding the reports about the Appellant s foot pain. Ms. Laybolt specifically asked about the diagnosis for the foot pain and whether it was something Dr. MacLeod related to the Appellant s back injury or asked if the Appellant had a separate issue causing the foot pain. [Appeal Record Tab 17] 36. In a letter dated August 4, 2012, Dr. MacLeod responded to Ms. Laybolt stating that his opinion was that the Appellant s foot pain was caused by his chronic L5 radiculopathy, which was a result of his back injury. He commented that he had an EMG completed on November 28, 2011 confirming chronic radiculopathy. [Appeal Record Tab 17] 37. On June 11, 2013, Dr. MacLeod wrote a further letter to the Board stating: {The Appellant} suffers from chronic neuropathy secondary to his back injury and lumbar disc herniation. During his appointment May 8, 2013 his examination revealed signs of a left foot metatarsalgia as well. It was felt that custom orthotics may help with his symptoms. [Appeal Record Tab 21]

10 WCAT Decision #192 Page 9 of Orthosis, Prostheses, and assisted devices fall under Medical Aid, pursuant to Section 18(1) and POL-92 of the Act. The Medical Aid definition speaks about promoting the medical rehabilitation of an injured worker. The Appellant in this case was an injured worker. 39. The fact that an accident occurred is not in question. The Appellant suffered an injury in 2003 and had a recurrence in 2009; both injuries were to his back. 40. Dr. MacLeod is very clear that the Appellant s foot pain is caused by his chronic L5 radiculopathy which is a result of his back injury. 41. Dr. O Brien concluded that the need for custom orthotics would not be related to the compensable injury. 42. With respect, the Board accepts that the evidence of Dr. MacLeod carries greater weight than the evidence of Dr. O Brien, as it was Dr. MacLeod who saw the Appellant and was his family doctor. 43. The Tribunal finds that the Appellant has an impairment to his ankle or foot as a result of a compensable workplace injury and that the standard footwear cannot be adequately adapted. 44. In this case, the Tribunal disagrees with the Respondent s argument that Dr. MacLeod s opinion did not necessarily link the need for custom orthotics with back injury and lumbar hernitation. Dr. MacLeod was quite clear and provided the necessary objective medical evidence to link the need for orthotics with the original workplace injury to the Appellant s back and lumbar herniation. The Tribunal finds that Medical Aid for the Appellant is appropriate and is related to his injury.

11 WCAT Decision #192 Page 10 of The Tribunal finds that the Appellant has suffered a serious foot or ankle injury resulting in functional impact of the lower extremity and, based on medical evidence, requires modifications to his existing footwear. One of the modifications would be custom orthotics inserts which cost may be covered by the Board. 46. The injury to the Appellant s back is directly related to the compensable back injury and therefore coverage should be provided. 47. Therefore, it is the Tribunal s decision that the Appellant is entitled to coverage for orthotics under this claim. 48. We thank counsel for their materials and submissions. Dated this 8th day of July P. Alanna Taylor, Vice-Chair Workers Compensation Appeal Tribunal Concurred: Stu Lavers, Employer Representative Gary Paynter, Worker Representative