APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240014
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer (not participating)
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: J.L. Hughson, appeals resolution officer
ISSUES
The worker objects to the Nurse Consultant’s (NC) decision dated January 13, 2022, which denied the worker’s entitlement to custom-made foot orthotics.
BACKGROUND
On September 23, 2021, this Electrician Journeyperson was pulling cable conductors from a large reel on jack stands when they felt discomfort in their right big toe. The worker’s claim was allowed for initial entitlement to benefits for a right toe injury on October 18, 2021. In their decision dated November 4, 2021, the EA allowed the worker’s claim for entitlement to a right foot sprain, but denied entitlement to degenerative changes, as identified in the x-ray results dated October 4, 2021.
The worker began treatment through the Musculoskeletal Program of Care (POC) on November 29, 2021, with a chiropodist. On December 18, 2021, the chiropodist prescribed custom-made orthotics for turf toe and metatarsalgia. In their decision dated January 13, 2022, the NC denied entitlement to payment for these, as orthotics not allowable unless they are prescribed to treat pes cavus deformities of the foot, or when there are deformities to the structures of the soft tissues of the foot that resulted from a crush injury or burn.
In their decision dated June 6, 2022, the CM determined the worker had reached maximum medical recovery (MMR) with no permanent impairment for their compensable right foot sprain/strain. The worker resumed their full regular job duties on June 13, 2022.
The worker objects to the decision dated January 13, 2022, and this issue is now before me.
AUTHORITY
Operational Policy Manual
Published
17-01-02 Entitlement to Health Care
October 12, 2004
ANALYSIS
I find the worker’s objection is allowed, for reasons I will outline, below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
In their submission, the worker’s representative (WR) contended that the claim should be allowed for entitlement to custom foot orthotics, as the diagnosis for which the orthotics were prescribed was turf toe, which the WR explained is a metatarsophalangeal (MTP) joint sprain.
The employer indicated they would not participate in this appeal.
Policy 17-01-02, Entitlement to Health Care, states in part 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.
The policies goes on to state that health care includes assistive devices and prostheses.
On December 18, 2021, the worker’s chiropodist recommended the worker have one pair of custom-made orthotics for the diagnoses of turf toe and metatarsalgia. In their assessment report of the same date, they noted that the worker’s chief complaints included deformity, inability to fit into regular shoes, tired feet, pain in ball of right foot, and bunions. They also noted that the worker had orthotics previously, although it is not known when. The chiropodist diagnosed the worker with metatarsalgia and turf toe. They recommended custom-made orthotics in order to support the medial longitudinal arch, stabilize the supination/pronation, and support the plantar fascia.
In the family doctor’s medical note dated December 21, 2021, they stated in part, that the worker
…has mechanical foot pain secondary to pes planus and I am recommending that [the worker] get custom-made orthotics.
I accept the WR’s explanation that the diagnosis of turf toe is a sprain around the big toe, which is consistent with the worker’s compensable right foot sprain. However, the claim has not been allowed for metatarsalgia, degenerative changes, or pes planus, commonly known as flat feet, which is a condition that results in the medial longitudinal arch contacting, or nearly contacting, the ground. I note that the chiropodist identified that one of the reasons for recommending custom-made orthotics was to support the medial longitudinal arch.
In their decision, the NC denied the worker’s entitlement to orthotics because they stated the WSIB will only fund custom foot orthotics when they are prescribed to treat pes cavus deformities of the foot, or when there are deformities to the structures of the soft tissues of the foot that resulted from a crush injury or burn. Despite this, policy does not provide the conditions for which custom-made orthotics must be prescribed in order to allow entitlement.
Based on the available medical information, I acknowledge that the recommended custom-made orthotics would address both compensable and non-compensable conditions. Despite this, these other conditions appear to be incidental to the chiropodist’s assessment. The chiropodist specifically stated that the worker’s custom-made orthotics were for the worker’s compensable turf toe/right foot sprain. The fact that the custom-made orthotics may benefit other issues does not negate that they were necessary for the worker’s compensable condition.
Given the above, I find the medical information supports that the custom-made orthotics were necessary, appropriate, and sufficient for the worker’s compensable injury. The claim is allowed for a one-time purchase of custom-made orthotics, as provided in policy 17-01-02.
I note that the worker’s orthotics were prescribed on December 18, 2021, but the operating area has determined the worker reached MMR with no permanent impairment as of June 13, 2022. It is not known if the worker purchased the orthotics themself, or if they were never purchased. As the worker has already reached MMR with no permanent impairment, it would not be appropriate for the worker to be entitled to purchase custom-made orthotics at this time, as the compensable condition for which they were recommended has fully resolved. However, if the worker did purchase the orthotics prior to their MMR date, they would be entitled to reimbursement for the cost of the item, which is provided in the estimate dated December 18, 2021.
CONCLUSION
The worker’s objection is allowed.
The worker’s claim is allowed for entitlement to one pair of custom-made orthotics, on a one-time basis. However, this is subject to the conditions I have outlined, above.
DATED August 31, 2023
J.L. Hughson
Appeals Resolution Officer
Appeals Services Division