Worker v. Employer, 2023 CanLII 37847

Ontario Workplace Safety and Insurance Board

DECISION NUMBER: 20230058

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER (NOT PARTICIPATING)

REPRESENTED by: NONE

HEARING: HEARING IN WRITING

HEARD by: H. MOHAMED, APPEALS RESOLUTION OFFICER DATED: JANUARY 23, 2023

ISSUES

The worker representative (WR), on behalf of the worker, objects to the following decisions:

1. The Case Manager’s (CM) decision dated January 17, 2022, which denied entitlement to hydrotherapy.

2. The Occupational Therapist (OT) decisions dated May 13, 2022, and May 27, 2022, which denied a hydropool as well as a stationary modular home.

BACKGROUND

A detailed history of this claim has been documented in the Appeals Resolution Officer (ARO) decisions dated December 27, 2016 and November 4, 2021, and will not be repeated again here.

Briefly, this now 43-year-old worker was pinned between a forklift and some pallets on August 25, 2008, resulting in a low back disc herniation that required two surgeries. In September 2010 the worker was granted a 35% Non-Economic Loss (NEL) benefit for their permanent low back and left leg nerve root injury. The worker is also in receipt of a 25% NEL benefit for psychotraumatic disability and a 10% NEL benefit for sexual dysfunction. The worker’s combined NEL benefit is at 61%, which places them in the “severely impaired” category of workers and makes them eligible for various other benefits such as an independent living allowance (ILA), Independent living devices (ILD), and home modifications.

The December 27, 2016, ARO decision concluded, among other things, that the worker was unemployable and eligible for full loss of earnings benefits to age 65.

The November 4, 2021, ARO decision addressed the worker’s objections to various decisions related to home modifications. One of the issues before the ARO was entitlement to a heated hydropool. The ARO, however, made no findings on this issue given that the Operating Area had not rendered a formal decision on whether the worker had entitlement to hydrotherapy. The ARO asked the Operating Area to revisit the issue of a hydropool once a determination had been made as to whether the worker was entitled to hydrotherapy.

Following the ARO decision, the CM denied entitlement to hydrotherapy on the basis that there had been no significant deterioration in the worker’s organic condition. The WR has objected to this decision.

The worker underwent a Hobby Assessment in September 2021. During this assessment, the worker identified spending time at the beach with family as there “hobby” and requested entitlement to a wheelchair accessible stationary modular home to assist them in pursuing this hobby. The worker felt this would be beneficial for their physical, emotional and psychosocial well-being. The Hobby Assessment Report noted the worker would also require a comfortable reclining beach chair that would allow them to sit and lie down in various positions as well as a beach bag or table that would reach at waist level to eliminate any bending.

In the decision dated May 13, 2022, the OT denied entitlement to a stationary modular home because this request did not meet the definition of specialized equipment as defined in the ILD Policy. However, the OT was willing to considering entitlement to a reclining beach chair as well as a bag/table to assist the worker in pursuing their hobby of spending time on the beach.

The WR objected to the above decision and indicated the worker wanted to change their hobby request to hydrotherapy and requested the hydropool as hobby equipment instead. In a decision dated May 27, 2022, the OT denied the hydropool as hobby equipment under the ILD Policy. The WR has objected to this decision.

Accordingly, the following issues will be addressed in this appeal:

• Does the worker have entitlement to hydrotherapy?
• Is the worker entitled to a stationary modular home or a hydropool as a specialized hobby equipment under the ILD Policy?

AUTHORITY

Operational Policy Manual Published

17-06-03 Independent Living Devices October 14, 2009

17-01-02 Entitlement to Health Care October 12, 2004

ANALYSIS

For the reasons that follow, I find the worker is not entitled to hydrotherapy, a stationary modular home or a hydropool under this claim. In reaching this conclusion, I have considered the information contained in the case record, the relevant Operational Policies, and the submissions made by the WR. The employer is not participating in this appeal.

1. Entitlement to hydrotherapy

In her submission dated October 21, 2022, the WR essentially argues that the worker requires hydrotherapy as maintenance treatment to help maintain function, improve strength, cardio capacity, mobility and quality of life. The WR points out that there are numerous therapeutic benefits to hydrotherapy for spine injured patients. The WR contends that there is no provision in WSIB policy or legislation that requires there to be a deterioration of a permanent impairment in order to grant maintenance treatment.

The worker has a 35% NEL benefit for their permanent low back impairment and left leg nerve injury since September 2010. According to the NEL Assessment Report, the worker had significantly reduced range of motion (ROM) in all planes. In reviewing the medical reports since the NEL assessment, the worker’s overall ROM has remained severely limited. The worker has tried multiple treatment modalities over the years with very little success. The worker continues to take opioid medication for pain control which includes hydromorphone and dilaudid. According to the Home Safety Assessment report dated July 21, 2020, the worker indicated that they took 6mg of Dilaudid, three times a day; Hydromorphone 2mg, 4-5 times a day; and hydromorphone 9mg at bed time to help them sleep. The same report indicated that the worker spent most of the day soaking in hot water for pain relief.

Policy 17-01-02 (Entitlement to Health Care) states that a worker is entitled to benefits under the insurance plan to such health care as may be necessary, appropriate, and sufficient as a result of the injury.

In a medical note dated November 2, 2020, Dr. Baker (family physician) stated the worker would “benefit” from warm water therapy for ROM and mobility. Based on this request, the Nurse Consultant (NC) approved a physiotherapy assessment to obtain a treatment plan to determine if the worker would be a candidate for hydrotherapy. The physiotherapist provided a report dated December 8, 2021 recommending a combination of a pool program and gym program to assist with stretching/strengthening and functional activities. The therapist noted that water exercises would be beneficial in getting the worker more active and improve movement pattern, strength and ROM. I note that the ROM measurements taken at the physiotherapy assessment were actually better than what the worker presented at the NEL assessment.

In a conversation with the NC on December 16, 2021, the therapist recommended 12 weeks of treatment twice a week. However, the therapist noted the worker was only interested in doing water exercises at home rather than coming to a clinic for therapy.

The NC ultimately denied entitlement to physiotherapy or hydrotherapy because the primary purpose for the treatment according to Dr. Baker and the therapist was to improve the worker’s ROM and level of functioning and neither of these had deteriorated since the worker was last assessed for the NEL assessment.

According to the literature provided by the WR, hydrotherapy is any method that uses water to treat a variety of symptoms throughout the body. It is also sometimes referred to as water therapy or pool therapy. It can be beneficial for numerous types of injuries including spinal injuries.

I agree with the WR that there does not need to be a deterioration below NEL level to grant entitlement to maintenance treatment. However, maintenance treatment cannot simply be granted because it provides some minimal relief on a temporary basis. There must be some objective benefit to the treatment for entitlement to be considered.

To that end, I note the WSIB has created an Administrative Practice Document titled “Maintenance Treatment” which can be found on the WSIB website. This supplementary document is utilised by decision makers to assist in understanding the practical application of operational policy and law relative to a worker claims. This document describes maintenance treatment as treatment beyond maximum medical recovery (MMR) with the purpose of preventing deterioration or reducing use of medication, rather than rehabilitation. It states that in determining whether to authorize maintenance treatment, the decision-maker must be satisfied based on objective medical findings, that the treatment is necessary to achieve one or more of the following objectives:

• enables the worker to continue working;
• leads to reduction in the worker’s pain and/or medication use;
• increases the worker’s level of functioning or prevents a deterioration in the level of functioning;
• and teaches the worker independent management of the condition.

In order for decision-makers to consider a request for maintenance treatment, the health care professional must submit the request in writing, outlining the

• proposed treatment plan (including frequency and duration),
• goal of the treatment, and
• expected outcome

Having considered the evidence, I find there is no entitlement to hydrotherapy on a maintenance treatment basis. I have come to this conclusion because there is no health care professional report on file providing a detailed rationale as to exactly how hydrotherapy will achieve some of the goals identified in the Administrative Advice Document. Dr. Baker indicated that hydrotherapy would improve ROM and function. However, the worker’s ROM at the physiotherapy assessment was already better than at the NEL assessment. There is no evidence that hydrotherapy would result in any further improvement in either ROM or function. Since the worker is deemed unemployable, hydrotherapy is not going to assist the worker to stay at work or find employment and nor is it likely to improve the worker’s overall function in any meaningful way. There is also no explanation as to how (or if) hydrotherapy would result in a reduction in the usage of medication. I certainly do not dispute that hydrotherapy can provide a therapeutic benefit for some workers; however, no medical rationale has been provided as to how this treatment would result in anything more than a mere transient benefit for this worker. Given the lack of any objective medical evidence to support how hydrotherapy would achieve any of the goals that have been identified in the Administrative Advice Document, I am unable to consider this request.

It is also worth noting that the physiotherapist told the NC that the worker was not interested in attending any hydrotherapy program in a clinic setting and wanted this treatment at home. Since this treatment requires some degree of supervision by a healthcare provider, it is unclear what benefit (if any) the worker would derive from performing this treatment at home. The fact is that the worker claims that they spend most of the day soaking in hot water for pain relief and yet clearly this has not resulted in any significant improvement. It is therefore unclear how performing hydrotherapy a home would be any different to what the worker has been doing up until now. Based on the medical evidence currently on file, I am not convinced that hydrotherapy would result in any appreciable benefit to the worker given that no previous treatment modality has resulted in any significant pain reduction. For these reasons, I find hydrotherapy is neither necessary nor appropriate at this time.

2. Entitlement to stationary modular home or a hydropool as a hobby equipment

The WR submits that hot tubs and whirlpool tubs are frequently allowed by the Workplace Safety and Insurance Tribunal (WSIAT) under the ILD Policy. The WR references numerous WSIAT decisions to support her position. In one decision, a worker was entitled to reimbursement for a Jacuzzi/hot tub because it alleviated the pain and allowed them to perform more exercises. It also reduced the worker’s reliance for pain medications and improved their overall mobility. In WSIAT decision 241/22, the worker was entitled to their modification to build an in-home swimming pool. In that case, hydrotherapy was recommended by the worker’s treating physician and similar to the worker, this individual had a non- compensable skin condition that prevented them from using public pools. The WR argues that the hydropool was recommended to the worker by their physician and occupational therapist to address mobility, ROM and chronic pain. Furthermore, it would result in a reduction in pain medications.

Policy 17-06-03 (Independent Living Devices) states that 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.

Eligible devices include (but are not limited to):

• automatic page turners
• "Easylift" or "Veculator"-type chairs
• environmental controls
• hobby/sports equipment
• 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.

This Policy goes on to state that 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.

I will first address the modular home. I note the WR did not make any submissions on this device and therefore it is unclear whether it is still being requested.

According to the Appeal Readiness Form dated May 17, 2021, the WR indicated that the worker wanted the kitchen expanded so that they could pursue their pre-accident hobby of baking. The worker was subsequently referred for a hobby assessment to explore potential hobby options for the worker to engage in given their injury and limitations. The Hobby Assessment Report dated September 10, 2021, noted the worker was no longer interested in considering baking as a hobby but instead requested a wheelchair accessible recreational vehicle (RV) as they were interested in spending time with their family by travelling and going to the beach. The worker reported difficulties using a conventional RV due to poor sleeping surface, difficulty driving long distances, managing the set up and accessibility. As such, the worker wanted to get a wheelchair accessible stationary modular home that they could park near the beach that was close to their spouse’s family where they could provide assistance with activities of daily living.

As noted in Policy 17-06-03, the WSIB will provide hobby equipment specifically designed or adapted to the worker’s needs for the purposes of pursuing one particular hobby. In my view, the worker’s request for a stationary modular home is unreasonable and does not meet the definition of hobby “equipment” that needs to be adapted. I note the Hobby Assessment Report recommended beach mats to allow use of a walker, reclining chair as well as a beach bag/table to limit sustained bending. The OT was willing to provide these equipment’s but the worker decided to switch the hobby from going to the beach to warm water therapy so that entitlement could be considered for a hydropool. I will address the hydropool request below. However, there is no provision within Policy 17-06-03 that allows for the purchase of an RV. If the worker already owned an RV, then consideration could have been given to adapting the RV so that the worker could pursue that hobby.

Concerning the hydropool, I acknowledge there are some WSIAT decisions that have approved hot tubs/whirlpools under the ILD Policy. However, in each of the cases identified by the WR, those workers were entitled to hydrotherapy as a form of health care treatment. However, as noted above, I have denied hydrotherapy in this case given the lack of any objective medical report outlining specifically how this treatment would be of benefit to the worker. Since there is no entitlement to hydrotherapy, there is no medical basis upon which to grant the worker a hydropool.

I do not accept the alternative argument that entitlement to the hydropool should be considered as hobby “equipment.” As already indicated, the hobby component of the ILD Policy is meant to support workers with adapted or specially designed equipment to allow them to participate in a hobby. However, it is unclear how having a hydropool would assist the worker in pursuing their hobby since there are no barriers preventing the worker from participating in this hobby in the local community. Unlike some of the WSIAT decisions that were referenced by the WR where the workers were paraplegic and had virtually no mobility, the worker is able to drive, confirms they are driving, and is more than capable of attending a gym or community centre to pursue this hobby. If the worker required any specific equipment (e.g. goggles, bathing suit etc...) to participate in this activity, they could be considered by the OT for reimbursement. However, providing the actual pool itself defeats the actual meaning of the policy.

The WR argues that the worker cannot attend a community or gym pool because of their pre-existing skin condition (psoriasis) and incontinence issues. With respect to the psoriasis, I am not convinced that this would (or should) prevent the worker from using a gym or community centre to partake in this hobby. I note the worker also raised this concern when they were sent for a physiotherapy assessment by the NC. Interestingly, when the physiotherapist had asked the worker to show them their psoriasis to determine whether the wounds were dry or bleeding, the worker refused (memo A0120). The fact remains that psoriasis is not a contagious disease and many people with this condition attend public pools. Besides, there is no medical information on file that indicates that the worker cannot attend a community pool or gym due to their psoriasis. Similarly, there is no medical documentation on file to suggest that incontinence would prevent the worker from partaking in this hobby in the community.

For these reasons, I find the worker is not entitled to a stationary modular home or a hydropool as hobby equipment.

CONCLUSION

Based on the foregoing reasons, I conclude:

1. The worker does not have entitlement to hydrotherapy.

2. The worker does not have entitlement to a stationary modular home or a hydropool as a hobby equipment.

The worker’s appeal is denied.

DATED January 23, 2023

Mr. H. Mohamed Appeals Resolution Officer Appeals Services Division