- Health care (home modification) (swimming pool)
- Evidence (weight) (medical report)
The issue under appeal was whether the worker was entitled to a home swim spa. The worker had suffered a C6-7 fracture rendering him a quadriplegic. He had received a 97% NEL award to reflect his impairments.
The appeal was allowed.The worker's submissions in support of his request included the following points: a home swim spa would provide hydrotherapy at home that was safe, convenient, and accessible; the benefits of hydrotherapy were distinct from other forms of therapy (e.g., the worker could stand for 25 minutes at a time in water but only 2-5 minutes in a standing frame); the only accessible pool (one with a mechanical celling lift in the change room) was one hour away, and included problems with chemical temperature regulation and access to the lift itself; and, the worker's long-time registered physiotherapist had strongly recommended the home swim spa.The Vice-Chair noted that under section 33(1) of the WSIA, every worker who sustains a compensable injury is entitled to such health care as may be necessary, appropriate and sufficient," as a result of the accident. In addition, there was no dispute that the worker met the threshold criterion under OPM Documents No. 17-06-03 and 17-06-08 for being a severely impaired worker. The Vice-Chair noted that the crux of entitlement centered around whether the request was "necessary, appropriate and sufficient" as set out in the legislation. With respect to accessibility, the Vice-Chair noted that the pool had closed during the pandemic, and on one occasion, the worker had become trapped in a broken lift and had to be extricated by a fire response team. Although these were exceptional circumstances, the Vice-Chair recognized that it remained the case that the pool could only accommodate the worker at limited and specific hours, which were restrictions that limited his autonomy. The pool only had available wheelchair times three times a week for two hour time slots. Much of the two-hour slot was spent effecting the lift transfers. Furthermore, a two-hour drive to and from the pool facilities constituted a significant investment of time for an individual who fatigued quickly. The file information also established that the water temperature at the pool was not regulated to accommodate the worker's needs for less extreme temperatures. This was important because the worker's spinal column injury adversely affected his ability to regulate temperature.In addition, it was submitted that the risk of infection at a public pool was greater. While the Vice-Chair was unable to verify this statement, it was recognized that the worker was at frequent risk for skin and other infections, and the medical documentation noted that he was vulnerable to such conditions. Therefore, it was reasonable to infer that greater contact with other people would increase the risk of infection. Although chlorination could provide a level of safety; conversely, it was noted that a higher level of chemicals could also constitute a danger for the worker's skin sensitivities. The Vice-Chair concluded that the pool facilities available to the worker were neither appropriate nor sufficient to meet the needs of the worker. The Vice-Chair then turned to the second prong of analysis regarding whether other therapeutic remedies could render hydrotherapy unnecessary. The Vice-Chair noted that the worker's current and extensive treatment modalities had been designed to assist the worker in functioning at his optimal physical level. However, the Vice-Chair was not satisfied that the available modalities addressed the specific benefits of hydrotherapy, or the interactive benefits of a combination of land and water based therapy. It was noted that with hydrotherapy, the worker had less spasticity and less pain. During hydrotherapy, he had an increased ability to perform movements and functional ability tasks, and he could stand for 25 minutes as opposed to 5 minutes in a standing frame. It was also specified that hydrotherapy provided enhanced cardiovascular functioning and respiratory efficiency, and an ability to perform exercises with less stress and overuse to the upper extremities. The Vice-Chair then turned to the third prong of analysis: whether the home swim pool spa could be considered necessary, appropriate and sufficient. It was reiterated that the worker met the threshold criterion of being a severely impaired worker under the relevant OPM Documents. It was also concluded that a home pool spa accorded more with the purpose of OPM Document 17-06-03 and its entitlement criteria. The Vice-Chair noted that the home swim spa would help the worker be more mobile, engage in self-care, and possibly avoid further health complications. In addition, the worker was in his 40s, and the pool would meet a permanent or long term need. It could also be used safely and effectively by the worker. It was noted that the worker had the assistive devices at home to effect transfers safely. There were also two RTs at his home four days a week, which would optimize the time he could spend in the pool. In addition, the worker's family physician and his physiatrist, along with two physiotherapists, had prescribed a home pool spa. Furthermore, the Vice-Chair noted that although there was considerable cost involved in granting entitlement to a home swim spa, the Board had not raised this as a determinative factor. Moreover, the Board had approved many items of significant cost to enhance the worker's quality of life. It was also recognized that the alternative cost-effective municipal pool was simply not appropriate for the worker. The Vice-Chair also referenced Decision No. 1594/01, which noted: "...when we speak of what is "appropriate" for the worker's quality of life, it behooves us to consider the worker's life as a result of his compensable injury." The Vice-Chair accepted that hydrotherapy provided the worker with the freedom to move on his own with the assistance of water buoyancy. No other assistive device provided this autonomy. The Vice-Chair stated that although the psychological benefits of this could not be estimated, the value of this for the worker was intuitively apparent. In addition, the fact that all of the worker's family could benefit from a home pool spa did not militate against its primary benefits to the worker. Furthermore, it was not considered inconsequential that the whole family could benefit from time together in a private setting.In conclusion, the Vice-Chair found that the worker's situation came within the policy requirements for assistance that was necessary, appropriate and sufficient. Accordingly, the worker was found to be entitled to a home pool spa.