APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20220022
OBJECTING PARTY: worker, self-represented
RESPONDENT: employer
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: Dorothy Zaffino, appeals resolution officer
ISSUE
The worker objects to the occupational therapist (OT) decision dated June 15, 2021, which denied entitlement to an all-terrain vehicle (ATV).
BACKGROUND
On May 14, 2020, this now 29 year-old concrete pump driver was driving a cement truck and rear ended a dump truck, sustaining serious injuries. The worker underwent several surgeries including fracture reductions, fusions, skin grafts, and amputations for extensive injuries to the back and legs. The worker’s claim was allowed for a low back fracture, left hip fracture, left knee fracture, left below knee amputation, right lower leg fracture and right ankle fracture.
In decision letter dated June 1, 2020, the worker was granted entitlement to an Independent Living Allowance (ILA). On June 22, 2020, a home safety assessment was conducted and home modifications were completed inside and outside of the worker’s home.
The worker attended the Rehab Centre (RC) from July 27, 2020 until October 30, 2020 for in-patient rehabilitation and was fitted with a left below the knee prosthesis. A mobility assessment was completed in March 2021 to address barriers of access to the worker’s property. The purpose of the assessment was to find an appropriate mobility device that would allow the worker to safely and independently access their 26-acre hobby farm and care for their animals.
The mobility assessment was completed by an OT with a contracted provider. The OT concluded that, from a functional perspective, a scooter and all-terrain powered wheelchair were suitable but were not suitable to access the farm terrain. The report recommended that an ATV as the most appropriate device to access the worker’s property.
Entitlement to the ATV was denied in the decision of June 15, 2021, given it was viewed as a recreational vehicle. It was also concluded that mechanical failure of the ATV could result in greater injury then mechanical failure of a mobility device, could cause further injury, and the ATV was found not to be a health care device.
AUTHORITY
Section 32, Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy Manual
Published
17-06-02 Independent Living Allowance 17-06-03 Independent Living Devices
October 12, 2004 October 14, 2009
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker is entitled to an ATV as an independent living device.
WORKER POSITION
In their submission the worker argues they required an ATV to access their property in all weather conditions given their limited ability to walk. They require the ability to feed their animals around their property.
No additional submissions were provided for consideration.
EMPLOYER POSITION
The employer representative provided written submissions that supports the WSIB decision to deny the ATV. They argue greater weight should be placed on the following points:
- That mechanical failure of the ATV could cause greater injury then mechanical failure of a mobility device.
- An accident involving an ATV could cause further injury.
- An ATV is not a health care device, and based on the risk assessment, there is greater risk for harm than good.
The employer representative also submitted Workplace Safety and Insurance Appeals Tribunal Decision No. 1413/13 for review and consideration. In this decision, the Vice-Chair found the safety concerns identified by the WSIB as the reason for denying the worker entitlement for an ATV are reasonable and justifiable, and the worker’s request for an ATV as an independent living device was denied.
RELEVANT POLICY
Section 32 of the WSIA defines health care to include measures to improve the quality of life of severely impaired workers.
Policy 17-06-02 (Independent Living Allowance) states:
Severely impaired workers are entitled to an annual independent living allowance to
- help them function as independently as possible where they work, where they live, and in society, and
- improve their quality of life.
Severely impaired
Workers are considered severely impaired if their disabilities/impairments are
- permanent and have been rated for either permanent disability (PD) benefits totaling at least 100%, or non-economic loss (NEL) benefits totaling at least 60%, or
- likely to be permanent in the opinion of a WSIB medical consultant, and are likely to meet one of the criteria above.
To determine whether workers who have both PD and NEL benefits are severely impaired, the WSIB must review these benefits under one rating schedule (i.e., either the PD or the NEL rating schedule, whichever is most appropriate). Once the benefits are reviewed under one schedule, the WSIB applies the rule described above.
Independent living
"Independent living" describes the ability to function personally and socially with reduced reliance on assistance from family, other people, or institutions.
Quality of life
Severely impaired workers normally experience a change in their quality of life, because the physical and psychological consequences of their injury or disease may reduce the ability to fully participate in personal, family, and social activities.
Purpose of the allowance
The allowance is intended to off-set the cost of services (regardless of cost) and devices and other items (less than $250), in order to improve a worker's ability to live independently and the quality of his or her life.
Spending the allowance
Workers can spend the allowance as they wish and are not required to provide receipts.
Workers who qualify for the allowance cannot claim separately for any independent living services, devices, etc. that are provided for in the allowance.
Workers may be entitled to additional reimbursement for devices that cost more than $250, if those devices are not intended to accomplish any of the objectives of the services covered by the allowance.
Policy 17-06-03 (Independent Living Devices) states:
Severely impaired workers may be entitled to independent living devices that cost more than $250 per item, and are not intended to accomplish any of the objectives of the services covered under the independent living allowance
For a definition of severely impaired workers.
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 Canadian Standards Association International (C.S.A.I.) or meets other applicable safety standards.\
Hobby equipment
If the impairment prevents a severely impaired worker from pursuing a hobby, the WSIB may provide hobby equipment specially designed or adapted to the worker's needs, for one hobby only. Workers may use the independent living allowance to purchase additional hobby equipment.
Exclusions
The WSIB does not reimburse workers under this policy for items that achieve the same objectives as the services covered by the independent living allowance.
For example, this policy does not cover payment for riding lawn mowers, tractors, snow blowers, home exercise equipment, etc., because the independent living allowance covers these needs.
RELEVANT MEDICAL AND CASE DETAILS
The Home Modification Proposal dated November 10, 2021 indicates the worker purchased a horse farm in April 2020. The farm is active and has several acres with barn structures. The home is approximately 2,000 square feet and is a 1.5 story farmhouse. The main entrance is at the rear of the home facing the barns and horse paddocks. A long, 500 meter unpaved driveway leaves from the rural highway to the home.
The Hospital report dated May 10, 2021 completed by TK, OT, states the limiting factors for the worker’s ability to tolerate walking longer distances is their safety on uneven ground. While the worker is independent walking moderate distances on even ground, their gait pattern is significantly altered due to their reduced left hip and knee range of motion. A right foot plantar flexion contracture also causes their foot to catch on the ground, making walking on uneven surfaces a significant fall risk. The report recommended a suitable outdoor mobility device to allow the worker to safely and independently access their barns and fields. The worker completed a thorough mobility evaluation with a community OT, TS.
The May 5, 2021 Mobility Initial Assessment completed by the OT noted the worker demonstrated safe indoor mobility with the use of a cane and walker as needed. Due to the worker’s reduced balance and endurance, the use of a mobility device was recommended for outdoor mobility, particularly on uneven terrain. An all-terrain scooter and all-terrain power-wheelchair were trialed. The OT commented they do not fully meet the worker’s mobility needs. This was based on the type of terrain the device would be used on, and the extent of work and leisure activities the mobility device will be used for. The OT recommended an ATV model Outlander XMR as being most appropriate for outdoor storage and long term outdoor use.
The all-terrain scooter – Pursuit XL – was trialed on March 15, 2021. The OT did not recommend this device because it could not be used on rough terrain and could get stuck in the mud and snow. While it did have larger wheels than a traditional scooter, it was deemed at high risk of tipping over on uneven terrain, did not have much ground clearance, and was not four-wheel drive. The cost estimate for this device was $6,200.
The all-terrain power wheelchair was trialed on April 26, 2021. The OT noted it had functional ground clearance and large 12-inch ATV style wheels. With four-wheel drive, it was able to go over gravel, sand, uneven terrain and dirt quite readily. However, it did not meet the worker’s mobility needs, as it is not able to go through water. The cost estimate for this device was $22,400.
Additionally, both the power wheelchair and the scooter needed indoor storage, which was not available without new structures being built.
An ATV was then considered for trial as it fulfills both all-terrain capability and potential for outdoor storage next to the worker’s home. This made it accessible to the worker without the need to build additional storage. The worker trialed the Outlander XMR 850 ATV on May 4, 2021 and was observed transferring safely on and off. It was noted to meet their work and leisure needs compared to the scooter or power wheelchair, and has four-wheel drive. The OT noted the worker demonstrated the cognitive ability to operate a mobility device safely. The worker demonstrated appropriate judgement, and took appropriate safety precautions while driving. The cost estimate for the ATV was $19,000.
The OT recommended the ATV as being the device that best suits the worker’s mobility needs for navigating the property. The ATV is the most effectively designed for all terrain use and is the only one that is able to tolerate use through water in addition to the other types of terrain. The OT confirmed the property is uneven and has several ruts and areas that collect water following rain and during the spring thaw.
The WSIB OT denied the worker’s request for the ATV based on a risk assessment. The reasons provided by the OT were:
- Mechanical failure of the ATV could result in greater injury than mechanical failure of a mobility device
- It could cause further injury
- It was not a healthcare device
- There is greater risk for harm than good.
In a memo dated June 15, 2021, the case manager confirmed the denial of the ATV. At that time, access to the worker’s property and access to their animals remained outstanding. The worker was reported to be using a large tractor to access their property. The worker would park their tractor near their front door. In the winter months, the tractor was parked in the garage, which is a distance from their house requiring the worker to navigate uneven terrain on foot.
A medical report dated July 22, 2021 submitted by Dr. Dudek states it is not safe for the worker to be walking any significant distances on their property on a recurrent basis. Dr. Dudek supported the purchase of the ATV and felt it was appropriate for the worker.
ASSESSMENT OF THE EVIDENCE
In my review of this case and having regard for policy 17-06-03 (Independent Living Device), I find the worker has entitlement to an ATV.
The worker suffered a significant lower limb trauma following a motor vehicle accident. The worker required a left below-knee amputation and sustained extensive additional injuries.
Policy 17-06-02 (Independent Living Allowance) states workers are considered severely impaired if their disabilities/impairments are permanent and have been rated for either PD benefits totaling at least 100%, or NEL benefits totaling at least 60%, or it is likely to be permanent in the opinion of a WSIB medical consultant, and are likely to meet one of the criteria above.
I note the worker’s NEL has not been rated yet. However, the operating area has granted an ILA. I interpret this to mean the operating area expects to the worker’s NEL to be at least 60% once it is rated and meet the definition of severely impaired.
Policy 17-06-03 (Independent Living Devices) states if the impairment prevents a severely impaired worker from pursuing a hobby, the WSIB may provide hobby equipment specially designed or adapted to the worker's needs, for one hobby only. Workers may use the independent living allowance to purchase additional hobby equipment.
It isn’t clear if the operating area viewed the ATV exclusively as a piece of hobby equipment. In this case, I do not consider the ATV to be a piece of hobby equipment. The worker is requesting the ATV so they can regain independent access to their property. I do not view the care of the animals on the property as a hobby or recreational activity, rather they are requirements of owning a small farm.
Policy 17-06-03 (Independent Living Devices) outlines the criteria to be considered when reviewing requests for independent living devices.
Helps restore a worker's ability to be…mobile
The clinical evidence on file supports the ATV as being the device that best suits the worker’s mobility needs for navigating their property. The OT stated the ATV is effective for all terrain use and is the only device trialed that is able to tolerate use through water. The OT confirmed that the worker’s property is uneven and has several ruts and areas that collect water following rain and during the spring thaw.
The goal of the mobility assessment was to find an appropriate mobility device that would enable the worker to safely and independently access their property and care for their animals. Noting the worker has animals, the worker requires access to them in order to provide them the necessities of life and would be considered a part of the worker’s daily activities. Currently, the worker is unable to access their property in a safe manner due to their significant lower extremity injuries.
I find the ATV would clearly help restore the worker’s mobility.
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)
The ILA is intended to offset the cost of services (regardless of cost) and devices and other items that are less than $250. The ATV is a device with an estimated cost of $19,000. I find the ATV is not intended to accomplish any of the objectives covered by the ILA.
Meets a permanent or long-term need
I find the ATV meets a long-term need. The worker owns a small farm. They have also sustained serious and permanent injuries. There is no indication that the need to care for the property will change in the near future. Nor do I expect the worker’s functional abilities to dramatically improve.
Is appropriate, given the nature of the worker's impairment and functional limitations (e.g., it can be used safely and effectively)
During the mobility assessment, the worker trialed an all-terrain scooter and an all-terrain power wheelchair. Neither were recommended. I am persuaded by the mobility assessment recommendation given they provided a thorough review of several options and assessed the worker first-hand. The OT noted the worker was observed to transfer safely on and off the ATV. The ATV met the worker’s work and leisure needs most effectively compared to the other options and has four-wheel drive. The ATV was the only option that could handle driving through water in addition to other types of terrain. It is also the only option that did not require additional storage solutions.
According to the information on file, the worker was using a tractor to navigate their property. The worker was unable to park the tractor close enough to their home, which presented a safety risk with the worker having to walk on uneven ground from the home to the tractor.
While I can appreciate the operating area’s safety concerns, those concerns are speculative and do not outweigh the worker’s very real need to access their property. Three options were explored and only the ATV was found to meet the worker’s needs. I have been directed to no evidence to support the conclusion ATV’s are susceptible to mechanical failures that result in injuries.
Is prescribed or recommended by a health care practitioner
Both Dr. Dudeck and the OT, TS, were in full support of purchasing the ATV.
Is reasonable in terms of costs and anticipated benefits
The estimated cost of the ATV is $19,000. In my opinion, the ATV would significantly improve the worker’s independence in the management and care of their home and would improve their quality of life. I consider these anticipated benefits to be significant. In light of those benefits, I view the costs as reasonable.
Is cost-effective considering alternatives on the market
The operating area did not identify alternatives on the market beyond the two other devices trialed nor did they identify cost as the reason for denying the device. In the absence of evidence to the contrary, I find the ATV to be a cost-effective option.
Meets performance standards generally accepted by medical or clinical rehabilitation specialists, and
is certified by Canadian Standards Association International (C.S.A.I.) or meets other applicable safety standards.
The ATV was recommended by a registered OT, who are rehabilitation specialists. The recommended ATV is manufactured by CAN-AM, a division of Bombardier. While the operating area has raised concerns with safety, those concerns are not that the ATV fails to meet safety standards. In the absence of evidence, to the contrary I find the ATV meets the appropriate performance and safety standards.
In the employer representative’s submissions, they argue entitlement should not be granted because the ATV is not a health care device. I don’t find this argument particularly persuasive. While an ATV is not a health care device, independent living devices meet the definition of “health care” under section 32 of the WSIA. There is no requirement under policy 17-06-03 (Independent Living Devices) that the device must be a health care device.
The employer representative also referred me to WSIAT Decision No. 1413/13. In this decision, the Vice-Chair found the operation of an ATV would pose a significant health risk to the injured worker. In that case, the worker requested the purchase of an ATV to drive into the woods to a hunting camp. The camp was in an isolated area accessed by old logging roads with rough terrain. The worker also indicated they would not be riding the ATV independently. In addition to the worker’s physical injuries, the worker also had a psychological impairment.
I do not find the circumstances described in the WSIAT decision to be comparable to this case. In the WSIAT case, the request for an ATV was made directly from a worker and was not recommended by any health care professional, nor did the worker undergo a mobility assessment where an ATV was recommended. Furthermore, the worker was intending to use the ATV in far more isolated and potentially treacherous conditions. I do not find the reasoning contained in that decision to be persuasive or relevant to the circumstances of this case.
I find the worker is entitled to an ATV. The implementation of this decision is left to the discretion of the operating area.
CONCLUSION
The worker’s objection is allowed.
DATED February 16, 2022
Dorothy Zaffino
Appeals Resolution Officer
Appeals Services Division