Highlights of Noteworthy Decisions

Decision 234 22
03/03/2022
G. Dee
  • Health care (appliances or apparatus)
  • Jurisdiction, Tribunal (final decision of Board) (matter expressly conferred upon Tribunal)
  • Health care (independent living) (severely disabled worker)

The worker passed away on January 25, 2019. The cause of death was acute myeloid leukemia (AML) that the Board accepted resulted from the worker's employment as a volunteer firefighter. At the time of his death the worker also had brain cancer. The WSIB has also accepted that the worker's brain cancer was caused by his work as a volunteer firefighter. The worker's spouse has requested reimbursement for a number of expenses incurred in the period prior to the worker's death including: property maintenance services; an iPAD, hospital Wi-Fi access, purchase of a Constant Therapy Cognitive Application, and an air conditioning unit.

The claims level decision of November 9, 2020 that denied the requested reimbursements included consideration of entitlement under both claim files despite the lack of inclusion of the AML claim number on the written decision.
The objection to the WSIB's decision to deny reimbursement by the worker's estate requested entitlement based upon the circumstances of both claim files. The ARO therefore had the jurisdiction to consider entitlement for reimbursement under the circumstances that existed in both claim files, but the ARO did not exercise that jurisdiction. The Vice-Chair found that it would not be appropriate to require the worker's estate to go back to the operational level of the WSIB once again for a decision in this matter before potentially being required to appeal again to an ARO and then once again to the Tribunal. The Vice-Chair therefore in this appeal found he had jurisdiction to consider the worker's entitlement for reimbursement of the claimed expenses under both the brain cancer claim and the AML claim.
The reimbursement of the cost of an iPAD (a computer tablet) is denied. There was no evidence that the purchase of the computer tablet was recommended by a health care professional for rehabilitative purposes. There was also a lack of evidence that the tablet was used for health care purposes before the worker's last weeks of life when rehabilitation software was purchased.
The reimbursement for an air conditioning unit is denied. There was a lack of evidence confirming that the costs claimed of $3,299.60 for a bedroom air conditioner were either necessary or a cost-effective way to ensure the adequacy of the worker's climate in his bedroom during the period of his recovery from surgery.
With respect to the worker's other claimed expenses that resulted from his compensable impairments, including property maintenance, hospital WiFi services and the Constant Therapy Cognitive Application, these would be compensated through the allowance of an Independent Living Allowance. The worker was entitled to such an allowance from the date of his surgery for brain cancer on June 27, 2018 until the date of his death. In the last seven months of his life, the worker was dying as a result of diseases that he had acquired because of his work. The worker needed care during this time and he was unable to perform the tasks that he used to be able to perform for himself around the house. Regardless of how the worker's circumstances would likely be assessed in terms of a future NEL award, the worker was clearly as a practical matter very severely impaired during those last months of his life. He was therefore entitled to an Independent Living Allowance from the date of his surgery until the date of his death.
The appeal was allowed in part.