- Permanent impairment {NEL}
- Preexisting condition (diabetes)
- Health care (appliances or apparatus) (orthopaedic footwear)
- Fracture (foot)
- Preexisting condition (adductus deformity)
The worker appealed the following issues: a) entitlement for a permanent impairment of his right foot; and, b) entitlement to coverage for custom orthotic work boots. The worker had suffered a fifth metatarsal fracture for which he underwent surgery.
The Vice-Chair allowed the appeal.The Vice-Chair noted that the worker's pre-accident history (a previous fracture of the same foot) made it more probable that the February 2012 injury would result in an ongoing and permanent impairment. In addition, although the worker had used orthotics for foot support prior to the February 2012 accident, use of such supports is commonplace and did not represent an impairment or injury of either foot.In addition, the worker had a pre-existing adductus deformity of both feet. This is a condition in which the front half of the foot is angled slightly inward. The accident and surgical repair resulted in a bony callus at the surgical site, at the "apex" point caused by the inward turn of the foot bones, causing further functional problems for the worker. The Vice-Chair interpreted "post-traumatic deformity" to mean that a superposed condition had the effect of making that deformity problematic, or symptomatic, in a way it had not been before the accident. The worker was entitled to non-economic loss (NEL) benefit assessment for a permanent impairment of his right foot.OPM Document No. 17-07-05, "Prosthetic and Assistive Devices: Orthopaedic" provides: "The WSIB may provide for such assistive devices and prostheses (orthopaedic devices) as are necessary." OPM Document No. 17-07-06, "Health Care Equipment and Supplies," indicates that such supplies will be provided if necessary to "improve or maintain the worker's independent living." For a worker in the workforce, maintaining independent living generally encompasses devices that enable the worker to continue to work. The Vice-Chair noted that health care equipment or prostheses are also warranted if reasonably required to prevent deterioration and/or further injury.The Vice-Chair found that the February 2012 injury was a significant contributing factor in the need, and recommendation for, custom orthotic footwear, which comes in pairs. Furthermore, Board policy provides no guidance on the number of pairs of custom footwear that may be reimbursed. In this case, the worker was entitled to reimbursement, at a minimum, for the three pairs of custom work boots he had previously purchased, and for future custom work boots as reasonably necessary. The Vice-Chair found that entitlement for custom footwear used outside of work was an issue best addressed in the first instance at the Board, subject to the usual rights of appeal.