- Health care (appliances or apparatus) (whirlpool)
- Health care (home modification)
This now 60 year old worker was provided with a 63% Non-Economic Loss (NEL) award for permanent impairments for a low back injury and depression arising out of a work-related accident occurring on July 1, 1991. The worker was also provided a full Future Economic Loss (FEL) benefit and entitlement to health care, including a hot tub.
When the worker moved, the Board paid for various costs associated with installing the hot tub in his backyard. In December 2018, the worker requested that the hot tub be moved to a newly constructed elevated backyard deck, and sought the Board's approval of the construction of the new deck. In a decision dated July 9, 2021, an ARO denied the worker's request because the new construction and hot tub relocation were not necessary.The worker appealed the issue of entitlement to the costs of installing a backyard deck. This appeal was allowed in part. With respect to the issue of bathroom renovations and expanding the main floor bathroom to accommodate an accessible roll in shower and existing bathtub, the matter was adjourned to allow the worker's representative an opportunity to confirm whether or not this issue remained in dispute.The Vice-Chair noted that the Board has a specific policy which is applicable for home modification. Under OPM Document No. 17-06-08 titled "Home Modification", the policy provides that home modifications "may be authorized to provide access to an area within the home, and any other areas utilized for ordinary living necessities, e.g., modification of a garage to provide access for a vehicle with an extended roof or installation of an automatic garage door opener".In this appeal, the worker's eligibility to a hot tub was not in dispute. The Board recognized that the hot tub was necessary, appropriate and sufficient health care for the worker's limitations caused by his low back injury. The central question now was whether there was a basis to justify reimbursing the worker additional expenses related to relocating the hot tub for a second time at the current location. OPM Document No. 17-06-08 provides that there is entitlement to home modification on more than a once only basis when "re-location is necessitated by circumstances beyond the worker's control". In the circumstances of this appeal, the Board approved and provided funds for the re-location of the worker's hot tub at his new residence.Turning to the worker's claim, the Vice-Chair was satisfied that the initial placement of the hot tub was unrealistic given the worker's functioning at the time. Firstly, the route from the outside of the house to the initial placement of the hot tub was unsafe in winter conditions. The Vice-Chair was satisfied that the functional demands associated with the circuitous route taken from the inside of the house to the outside of the house appeared to require functioning beyond the limits of the worker's abilities. This finding was supported by the video clips of the route which involved the worker exiting through the garage.The Board acknowledged that the worker's independent living allowance could have been used to clear snow from his path rendering his path safe. Assuming snow removal would have been done in a timely manner, the Vice-Chair was satisfied that the initial location of the hot tub still posed significant safety concerns given the distance and functional demands the route to the hot tub would have placed on the worker. In the Vice-Chair's view, the route taken by the worker would have put unnecessary functional demands on him. In contrast, the route to the hot tub's new location on the deck required minimal effort, as it was a mere few steps away from the floor that the worker resided on. Given all this, the Vice-Chair was satisfied that the initial location of the worker's hot tub was not safe and placed unnecessary demands on the worker.Furthermore, the Vice-Chair was satisfied that the Board's policy permitted reimbursement for the deck construction and relocation of the hot tub to the newly constructed deck. The Vice-Chair noted that the wording in the Board's policy was sufficiently broad enough to accept that that relocation of the hot tub due to safety concerns "is necessitated by circumstances beyond the worker's control". The Vice-Chair was satisfied that a broad reading of the policy in this regard was consistent with the purposes of the WSIA, as outlined in section 1, which include providing "compensation and other benefits to workers". The Vice-Chair noted further that an interpretation that is consistent with the wording of the statute, and furthers the statutory purpose of compensation to workers for workplaces injuries, is to be preferred over one that does not. In any event, if one could not read the policy broadly to authorize expenses on a "more than once only basis", the Vice-Chair noted that the Merits and Justice policy (OPM Document No. 11-01-03) would have been applied to provide reimbursement on the facts of this particular case.Finally, the worker submitted that he should be entitled to all expenses related to the construction of the new backyard deck and the relocation of the hot tub. The Vice-Chair found that reimbursing all the costs associated with the new backyard deck would not be appropriate. It was noted that the deck was too large for it to be accepted that it was only constructed for the purposes of relocating and reasonably using the hot tub. The Vice-Chair was satisfied that only a portion of the backyard construction and the hot tub relocation should be reimbursed, based on the location of the hot tub and the portion of the total deck it occupied. The Vice-Chair found that the worker was entitled to 1/3 of the cost of construction. As the total invoice for the construction totaled $35,145.00, it was determined that the worker was entitled to a reimbursement of $11,715.00.