Highlights of Noteworthy Decisions

Decision 1928 14
04/11/2014
S. Netten
  • Board Directives and Guidelines (health care) (appliances or apparatus)
  • Evidence (surveillance)
  • Health care (appliances or apparatus) (motorized scooter)
  • Health care (necessary)
  • Health care (independent living) (severely disabled worker)

The worker suffered a number of compensable injuries, for which he was granted a NEL award of 55%. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for a motorized scooter.

The worker's family doctor prescribed a motorized scooter in 2006. The Board approved a trial period. After receiving an anonymous tip, the Board conducted video surveillance and concluded that the worker did not require a scooter for functions of daily living. The Board did not consider the surveillance to constitute evidence of fraud and, accordingly, did not alter the worker's full LOE benefits.
Under s. 33(1) of the WSIA, a worker is entitled to such health care benefits as may be necessary, appropriate and sufficient. The definition of health care in s. 32 includes assistive devices. The only Board policy specifically contemplating payment for motorized scooters is the policy on independent living devices for severely impaired workers. The worker did not have a NEL benefits totalling at least 60% and, thus, did not qualify as a severely impaired worker.
However, the Vice-Chair agreed with previous Tribunal decisions that a worker who does not qualify for a scooter as an independent living device for a severely impaired worker may still be considered for entitlement to the scooter as an assistive device available to any injured worker if necessary, appropriate and sufficient, pursuant to ss. 32 and 33. The Vice-Chair noted that the term "assistive device" is not defined in Board policy. A plain grammatical reading suggests that it would include items that provide mobility assistance such as motorized scooters.
The surveillance evidence was relevant to the worker's abilities at the time in 2007. Since 2007, there has been no assessment of the worker's need for a motorized scooter. In 2012, the worker's doctor prescribed a wheeled walker for the worker, suggesting that this type of mobility aid was appropriate at that time.
Generally, the Tribunal has denied entitlement for scooters where medical professionals have not provided a clear opinion that a scooter is required. In this case, a motorized scooter may enhance the worker's mobility by providing an alternative to driving or walking, and it may be appropriate and sufficient as a safe means of transportation, but it was not established that a motorized scooter was necessary. The evidence did not establish that the worker required the scooter as a rehabilitative measure or in order to carry out activities of daily living.
The appeal was dismissed.