WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1099/06

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1099/06 BEFORE: J. Dimovski: Vice-Chair HEARING: May 19, 2006 at Toronto Written DATE OF DECISION: June 29, 2006 NEUTRAL CITATION: 2006 ONWSIAT 1479 DECISION(S) UNDER APPEAL: WSIB ARO decision dated October 20, 2005 APPEARANCES: For the worker: For the employer: Ms. E.A. Critelli, Consultant Did not participate Interpreter: Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1099/06 REASONS (i) Introduction [1] The worker appeals an Appeals Resolution Officer (ARO) decision dated October 20, That decision denied the worker entitlement to a hot tub. The ARO concluded that a hot tub was neither a necessary nor appropriate health care expense. Thus, the issue in dispute is whether the worker has entitlement for a hot tub. (ii) Background [2] On October 20, 1992, this now 50-year-old injured her left shoulder while employed as a dietary aide. Decision No. 2059/03 (released November 21, 2003) directed the Board to assess the worker s permanent impairment. On May 13, 2004, the worker was granted a 34% non-economic loss (NEL) award for her compensable left shoulder (left thoracic outlet syndrome). In addition to her compensable condition the worker suffers from legal blindness, sarcoidosis, chronic pancreatitis and reflux esophagitis. [3] Eventually, the worker purchased a hot tub and requested that the Board pay for it. In a handwritten note dated June 7, 2002, Dr. T.P. Sauks (no specialty) prescribed the daily use of a hot tub for the worker s pain syndrome. In a handwritten note dated October 14, 2004, Dr. D. Hatcher (chief of anaesthesia) wrote that the worker needed heat therapy via hot tub daily, as required. In a report dated March 1, 2005, Dr. D. Hatcher wrote in support of the purchase of the hot tub as follows: [The worker] has been assessed by four independent physicians over the past 6 years, including myself. Clearly she has pain condition which does not respond to conventional treatments. The suggestion was made for her to use a hot tub for relief of pain and this has been supported by all the physicians who have been involved in her care. She purchased the unit with the understanding that WSIB would help cover the cost, as it has with medications and other therapies for clients. At this point the hot tub seems to be the only thing that helps with the pain and I believe consideration should be given for WSIB reimbursement for this modality of treatment much like reimbursement for physiotherapy and medication. [4] In a letter dated May 3, 2005, the Board denied entitlement for the coverage of the hot tub for the following reasons: On June 16, 2004 the nurse case manager (NCM) advised [the worker] that WSIB would not cover the expense of a hot tub. The NCM provided [the worker] with alternative methods of providing heat to her shoulder injury. On June 28, 2004, seven days after her NEL award was issued, she purchased the hot tub fully aware WSIB would not cover its expense. Although medical documentation indicates the necessity for a hot tub, [the worker] was advised that this is not a medical item nor is it specific to the injury, as a hot tub can be purchased by the general public for general use. Policy stipulates that when determining entitlement to a health care expense it must be appropriate, necessary, and sufficient. [The worker] chose to purchase an elaborate hot tub that accommodates up to five additional people with 4 built in bucket seats, built in ice bucket, a body form lounger, and holds 1,360 litres of water. This is not necessary, appropriate, or efficient in the treatment of her left shoulder. Entitlement to the reimbursement of $9, for the purchase of a hot tub is further denied.

3 Page: 2 Decision No. 1099/06 [5] In a letter dated February 22, 2006, the operations manager for Hydropool Industries, the manufacturer of the worker s hot tub, Mr. Keith Noltie, wrote that the worker s hot tub (the 575 Gold model) was in the mid-price range of the manufacturer s product line. He noted that it was not considered luxurious but noted that it was easy to maintain and that its design helped keep the water in it cleaner for longer while saving hydro/heating expenses. At the end of his letter addressed to the worker s representative, Mr. Noltie wrote the following in part: The 575 model is a five seat model but again our hot tubs are designed with multi-level seating including a lounger. This contoured option allows [the worker] to incorporate different hydro massage therapies on different area of her back and body during the day based on her needs. My understanding is that by purchasing a less expensive bench style hot tub it would not satisfy [the worker s] medical/therapy requirements. It should also be mentioned that the Hydropool line of hot tubs offer a hand held jet option that can inset into one of the wall jet fittings. This offers a further concentrated hydrotherapy massage benefit for a specific hand, arm, neck or foot massage. [6] In her letter dated March 16, 2006, the worker s representative, Ms. Edda Critelli, submitted that medical opinion supported that the worker required the use of a hot tub and that due to her inability to travel, it was the only reasonable treatment. In addition, Ms. Critelli submitted that the actual model of hot tub purchased suited the worker s needs and as such, should be considered an appropriate expense. (iii) Reasons [7] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect. However, pursuant to section 102 of the WSIA, the Workers' Compensation Act (pre-1997 Act) continues to apply to pre-1998 injuries. Since the worker s accident occurred on October 20, 1992, the pre-1997 Act continues to apply, as amended by the WSIA. Specifically, section 50 of the pre-1997 Act governs the worker s entitlement in this case, which states in part: Health care, etc., during impairment 50. (1) Every worker who is entitled to compensation under this Part or who would have been so entitled had the worker been disabled beyond the day of the accident is entitled, (a) to such health care as may be necessary as a result of the injury; (b) to make the initial choice of doctor or other qualified practitioner for the purposes of this section; (c) where, in the opinion of the Board, the worker is rendered helpless through permanent total impairment, to such other treatment, services or attendance as may be necessary as a result of the injury. Definition (2) In this Act, health care means medical, surgical, optometrical and dental aid, the aid of drugless practitioners under the Drugless Practitioners Act, the aid of chiropodists under the Chiropody Act, hospital and skilled nursing services, such artificial members and such appliances or apparatus as may be necessary as a result of the injury and the replacement or repair thereof when deemed necessary by the Board.

4 Page: 3 Decision No. 1099/06 (6) All questions as to the necessity, character and sufficiency of any health care furnished or to be furnished and as to payment for health care shall be determined by the Board. [8] Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. I have considered these policies as necessary in deciding this appeal. In particular, I have considered Operational Policy Manual ( OPM ) Document No , Entitlement to Health Care, which provides in part: The Workplace Safety and Insurance Act provides: A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury. [9] I am not persuaded that the worker is entitled to the reimbursement of the cost of her hot tub. In my review of the medical record, two physicians, Drs. Hatcher and Sauks, support the worker s use of a hot tub to treat her pain syndrome. However, I did not place much weight on these reports because they did not explain the necessity of such a hot tub. First, Dr. Hatcher s statement that all the worker s physicians have supported the notion that the worker s pain was relieved by a hot tub is not evident from the record. Also, while I can accept that the worker receives pain relief from a hot tub, it does not mean that it is a necessity. The file indicates the Board has provided the worker a TENS machine and suggested other methods of pain relief. Dr. Hatcher noted that a hot tub seemed to be the only thing providing the worker relief. Unfortunately, it is not clear whether this was a medical opinion or the worker s opinion. Regardless, I did not find any specialized medical opinion, which related the necessity of the hot tub in treating the worker s condition. [10] More importantly, however, I am not persuaded that the hot tub purchased was appropriate as opposed to an in-house whirlpool. While I can accept that the 575 Gold Model is not luxurious, by the manufacturer s estimation, it does upon first reflection seem to be extravagant for its stated purpose. Mr. Noltie stated that it was his understanding that the basic bench style hot tub would not satisfy the worker s medical/therapy requirements. It seems Mr. Noltie is more informed of those requirements than the Board, since, as I noted above, there is no real medical evidence enumerating those requirements. Nevertheless, I am not persuaded that a five-person hot tub treats a left upper extremity for pain relief. There is no indication that the worker explored cost-effective alternatives, such as heating pads, mentioned by the Nurse Case Manager. In addition, a whirlpool bathtub may have been a cost-effective alternative. In my view, the hot tub the worker purchased is inappropriate. Therefore, I deny the worker s appeal.

5 Page: 4 Decision No. 1099/06 DISPOSITION [11] The appeal is denied. DATED: June 29, SIGNED: J. Dimovski