NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

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1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: Form of Appeal: WCB Claim No.: [X] oral hearing, November 9, 2011, Antigonish, NS [X] Date of Decision: November 14, 2011 Decision: The appeal of the August 17, 2011 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner Andrea Smillie.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This decision addresses the Worker s appeal from an August 17, 2011 Board Hearing Officer s decision which found that he was not entitled to medical aid benefits to cover the cost of child care expenses incurred while attending physiotherapy appointments. At the hearing before the Tribunal, the Worker provided sworn testimony and his representative made submissions. Neither the Employer nor the Board participated in the appeal. ISSUE AND OUTCOME: Is the Worker entitled to coverage of the cost of child care expenses incurred while undergoing physiotherapy? Yes. The Worker s physiotherapy treatment was necessary and expedient as a result of his compensable injury and he incurred child care expenses to attend his physiotherapy appointments. ANALYSIS: Section 186 of the Workers Compensation Act requires that the Worker s case be decided on the real merits and justice. Section 187 requires that where there is doubt on an issue respecting compensation and the possibilities are evenly balanced, the issue be resolved in favour of the Worker. The Worker is requesting medical aid assistance. Section 102 of the Act stipulates that the Board may provide a worker with any medical aid that it considers necessary or expedient as a result of an injury. Section 104 allows the Board to determine all questions regarding the necessity, character and sufficiency of any medical aid provided. The Worker sustained a spinal fracture on March 2, His injury was recognized as compensable and he was paid various benefits. He underwent surgery shortly after the injury. It took approximately 5 months for him to recover from the surgery. During this time he was in a body brace. He began physiotherapy treatment on September 27, The Worker has 2 young children. He testified that at the time of his injury his wife was not working. She returned to work soon after the accident because their income was This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 reduced while he was receiving workers compensation benefits instead of his usual salary. The Board covered various expenses including child care costs incurred between May 3, 2010 and September 11, Contact sheets on file detail conversations between the Worker and his case manger regarding reimbursement for the cost of baby sitting services. The Worker indicated in these conversations and also in testimony, that his wife had been forced to return to work for financial reasons. The Worker was still in a back brace and not able to look after his children while she was at work. The Board approved coverage of child care expenses for babysitting services incurred outside the Worker s pre injury work hours. So, if his work day had previously ended at 4 and he needed babysitting until 6 because his wife was working, the Board covered the period from 4 6. They also covered babysitting services on the weekend if his wife was working on the weekend. The Board also paid for babysitting while the wife took the Worker to various appointments. The Worker testified that at the time he began physiotherapy in September of 2010, his wife was not working because she had been laid off. So, he did not incur child care costs until March 2011 when she again returned to work. From March 2011 through to June 2011 when the Worker s physiotherapy ended, his youngest son attended daycare on the mornings that he travelled from Canso to Antigonish to attend his physiotherapy appointments. He testified that he tried to schedule his appointments for 8:00 am. He had to leave home at 6 am to arrive on time for the appointment. He usually finished around 10:00 am and was able to return to Canso to pick up his son at noon. He is seeking reimbursement of the cost of daycare because he would not have incurred this expense if he had been required to travel to physiotherapy appointments. The Board has approved the Worker s travel expenses, a total of 240 kilometres round trip, per physiotherapy appointment. The Worker testified that he inquired about seeing a physiotherapist who came to a local hospital very close to his home, 2 days per week. He was told that for billing reasons he could not attend sessions with the local physiotherapist and was told to continue with the physiotherapy in Antigonish. On May 10, 2011, the Worker s case manager considered his request for medical aid in the form of reimbursement for child care expenses. He stated that the Worker would be entitled to reimbursement if he could establish that the childcare coverage was needed so that he could attend a required appointment. However, the Worker had to demonstrate that the need existed only because of the compensable injury, and he had to establish that an additional expense had been incurred. He concluded: I have considered the fact that your physiotherapy treatments are held during what

4 4 would be your regular pre injury workday hours and therefore, if it was not for your injury and the need for physiotherapy, you would still be required to obtain and pay for childcare expenses on your own while you were working. Therefore, childcare expenses for your treatments in the physiotherapy clinic are not an additional expense as a result of your injury as you would have this expense if you were not injured and were continuing to work. Any child care expenses that were reimbursed to you in the past as a result of your injury, were done so because they would have fit the criteria for childcare expenses outside of your pre injury work day hours... The Hearing Officer also denied the Worker reimbursement of child care costs because he found that the Worker s physiotherapy took place during what would have been the Worker s regular work hours and because the Worker s spouse was employed, the Worker would have been paying for child care if he were working. For this reason, the child care expenses incurred by the Worker were not an additional expense arising as a result of his compensable injury. He concluded:...stated in another manner, had the Worker not experienced his compensable injury, he would not have been required to undergo physiotherapy but would have required child care services for the supervision of his children during the period of time both his spouse and he were working. As such, as noted above, the Worker s current child care expenses, falling within his normal pre injury work day would not be additional expense incurred by him as a result of his injury. Consequently, I find the Worker is not entitled to medical aid in reimbursement of his child care expenses. There is no evidence that the Worker had child care expenses associated with his attendance at his pre injury work during, normal work hours. In fact, the Worker testified that his spouse was not employed at the time of his injury and they did not have child care expenses. The last time his spouse was employed prior to his injury (in 2009), they set up their work schedules so that he finished work at 5 in the evening and she began at 6 in the evening. There were no child care expenses at that time either. There is no policy or specific guidelines dealing with the provision of medical aid to cover the cost of child care. The requirement that the expense be incurred outside of the normal pre injury work day, is not legislated. In this case, where there is no evidence that the Worker had child care expenses at the time of his injury, I do not find this criteria relevant. In Decision AD (August 25, 2000, NSWCAT) and AD (December 31, 2008, NSWCAT), the question of medical aid to cover the cost of child care expenses was

5 5 considered by the Tribunal. In both cases medical aid benefits were awarded because it was expedient to pay for reasonable child care costs incurred to attend appointments recommended by physicians. Decision AD involved similar circumstances to the Worker s. The Board had denied reimbursement of child care expenses because they found that the worker would have had child care expenses regardless of whether or not she had attended appointments because she was working part time. Therefore, the Worker had not incurred additional expense because there was no evidence that the child care provider had to stay any later than usual as a result of the Worker s attendance at appointments. The Commissioner concluded:...i find that she would be entitled to reimbursement of any expenses directly related to her attendance at medical appointments required as a result of her right shoulder injury. If the Worker attended appointments outside of times when she already had child care and she incurred child care expenses associated with her attendance at medical appointments, she is entitled to reimbursement of these child care costs. I find the same rational applies to this case. The Worker incurred child care expenses associated with his attendance at physiotherapy. There is no evidence that he would have required the child care or would have incurred these expenses, had it not been for his need to attend physiotherapy related to his compensable injury. The Worker required physiotherapy as a result of his injury and he could not attend these appointments without incurring child care costs. He did incur an additional expense as a result of the requirement that he attend physiotherapy and I find he did his very best to limit this expense. He left his home at 6 in the morning returning by noon, travelling a return trip of at least 240 kilometres to attend these appointments. He was attempting to minimize the time his youngest son spent in daycare. The Worker is entitled to medical aid assistance in the form of coverage of the cost of child care expenses incurred as a result of his attendance at physiotherapy from March to June of There have been no receipts filed with Board with respect to these expenses, and therefore, the Board is directed to consider payment of these expenses upon receipt of invoices or other documents outlining the exact expense incurred by the Worker. CONCLUSION: The appeal is allowed. The Worker is entitled to medical aid in the form of coverage of child care expenses incurred as a result of his attendance at physiotherapy which was necessary as a result of his compensable injury.

6 DATED AT HALIFAX, NOVA SCOTIA, THIS 14 th Day of November, Andrea Smillie Appeal Commissioner

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