WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090031
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: N/A
ISSUE
The worker representative objected to the August 6, 2008 decision to deny entitlement for custom orthotics.
HOW THE ISSUE ARISES
On July 16, 2003, the worker, then employed as a construction labourer, reported injuring his low back while lifting a bag of gravel off a pickup truck. The worker was diagnosed with a lumbar strain.
The worker had a CT scan of the lower back on June 25, 2003, three weeks prior to the injury. The CT scan indicated moderate posterior disc bulge and thickening of the ligamentum flavum at L4-5 resulting in mild narrowing of the spinal canal.
Initially, the worker did not lose time from work as the employer provided him with suitable modified duties. The worker had further difficulties in June 1994 and entitlement was accepted. The employer did not agree with this decision. They also requested relief of costs under the Second Injury and Enhancement Fund (SIEF).
The employer’s objection was referred to the Appeals Branch. The appeals resolution officer (ARO) found that the objection was not ready for the Appeals Branch and returned the matter for further action. It was requested that the operating area review whether or not initial entitlement had been accepted appropriately.
The claim was listed for a field investigation and information was received from the worker’s family doctor on January19, 2007. The family doctor indicated that the worker’s back condition became much worse after the workplace injury of July 16, 2003, and the further difficulties were directly related to this injury.
The matter was reviewed by the medical consultant who opined in Memo 79 that given the most recent information, it appeared that the worker’s ongoing back difficulties were related to the workplace injury of July 16, 2003. The medical consultant found that the medical significance of the pre-existing condition was major. The employer was granted 90 per cent SIEF cost relief.
The worker did not make a full recovery and was seen for a medical assessment for non-economic loss (NEL) purposes. In December 2005, the permanent impairment was assessed at 12 per cent.
The worker went on to have a number of recurrences of his work injury. Although the accident employer had offered modified duties, the worker chose to take a position with a new employer given that he was provided with regular full time work. He started with the new company in 2005.
At the final review of loss of earnings (LOE) benefits, it was determined that as a result of the most recent recurrence, the worker was totally disabled and not fit to return to the work force. Entitlement to full LOE benefits to age 65 was granted.
The family doctor wrote on July 2, 2008 indicating that the worker would benefit from custom orthotics.
In a letter dated August 6, 2008, the claims adjudicator (CA) advised the worker that the claim had been referred to the medical consultant for review. Entitlement for custom orthotics was denied as it was determined that they were not a necessary health care expense.
The worker representative submitted a December 13, 2008 letter from the family doctor explaining why entitlement for the custom orthotics was necessary in the treatment of the work injury. The additional information was reviewed by the CA and referred to the medical consultant.
On April 3, 2009, the medical consultant opined that the entitlement for custom orthotics did not appear to be a necessary health care expense at this time.
On April 30, 2008, the case manger (formerly the CA) confirmed the decision of August 6, 2008 to deny entitlement to the custom orthotics.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) Documents:
17-01-02 – Entitlement to Health Care
RESOLUTION METHOD AND PROCESS
The employer did not complete a form to participate in the appeals process. The worker representative submitted a 60 Day Election Form dated June 26, 2009. This Election requires the Appeals Branch to make an expedited decision (within 60 days) based on the information on file.
ASSESSMENT OF THE EVIDENCE
Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) Documents:
17-01-02 – Entitlement to Health Care stipulates the following, in part:
“The Workplace Safety and Insurance Act provides:
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.”
In the February 23, 2009 submission, the worker representative indicated that in order to address the denial of the custom orthotics, an expert opinion was obtained from the worker’s family doctor. The worker representative asked the family doctor some specific questions. The family doctor replied on December 13, 2008 that there would be improvement in the worker’s entire lumbar, pelvic and leg alignment which would alleviate his pain and suffering to some extent with the use of the custom orthotics.
The worker representative maintained that the worker suffers from the effects of his permanent low back impairment. He has sought consistent medical treatment from a number of doctors and specialists in order to achieve further resolution from pain and symptoms. The family doctor is of the opinion that the worker would benefit from the custom orthotics in terms of pain.
In the note of December 13, 2008, the family doctor indicates that the worker has been under his care since 2003. In his opinion, the custom orthotics would improve his gait and limp and as a result would improve the entire lumbar, pelvic and leg alignment, thus alleviating pain and suffering to some extent.
The medical consultant in Memo 160 noted that when the worker was assessed by a specialist on January 16, 2009, there was no mention of an antalgic gait. However, another specialist reported on January 17, 2008 that the worker had difficulty ambulating and his pain radiated to his lower limbs.
The MRI scan of November 22, 2007 is reported to have shown that the worker had degenerative disc disease (DDD), pars defects, annular tear at L4-5 and questionable spondylolisthesis, as well as moderate to severe spinal stenosis at L4-5 and mild changes at L5-S1.
The medical consultant opined in Memo 160 that from the evidence on file, the worker had severe pathology in his low back and since the specialist in January 2009 did not recommend orthotics, it was unlikely that they would assist in managing the worker’s mechanical low back pain.
Although I note the opinion of the medical consultant, the family doctor has been treating the worker since 2003 and did have the opportunity to examine him. The worker does have a permanent impairment (12 per cent NEL award) and has continued to have significant low back difficulties as well as symptoms in his lower limbs. I am prepared to accept the family doctor’s opinion that the worker would benefit from the use of the custom orthotics.
CONCLUSION
I have concluded that entitlement to the custom orthotics is appropriate and necessary health care treatment as a result of the work injury. Entitlement is granted for the custom orthotics on a one-time-only basis. Any further entitlement is to be reviewed by the operating area with updated medical information in order to ensure the use of the custom orthotics continues to assist the worker in alleviating some of the pain and suffering as a result of his compensable injury.
The worker representative’s objection is allowed.
DATED July 16, 2009
M. E. Ryczko Appeals Resolution Officer Appeals Branch