Decision #14/00 - Type: Workers Compensation
An Appeal Panel review was held on February 8, 2000, at the request of the claimant.
Whether or not the claimant should be provided with full snow removal services.
That the claimant should be provided with full snow removal services.
During the course of his employment on January 25, 1995, the claimant bent over to pick up a piece of cardboard when he felt a click in his back. The claimant was subsequently diagnosed with a compensable L4-5 disc herniation. Physical restrictions to avoid lifting more than 30 pounds and to refrain from frequent bending, twisting and stooping were imposed.
On November 9, 1998, the claimant wrote to the Workers Compensation Board (WCB) indicating that he had purchased a new house with a bigger driveway and sidewalk. He believed that he was unable to clean and maintain the large area during the winter season. He stated that he recently found out about the possibility of snow removal and requested that his request be given consideration.
In a letter, dated November 21, 1998, Claims Services at the WCB advised the claimant that it was unable to accept responsibility for the costs of snow clearing. The adjudicator explained that the WCB may make expenditures from the accident fund as it considered necessary or advisable to provide assistance to a worker where, as a result of an accident, the worker required assistance in the activities of daily living. It was not, however, accepted practice of the WCB to provide reimbursement for yard maintenance or snow clearing.
On January 22, 1999, the claimant appealed the above decision to Review Office. The claimant indicated, in part, that the WCB spent a considerable amount of money in paying his wage loss benefits and for the costs associated with educating him in computers. He was concerned that his attempting to clear snow could easily exacerbate his back condition and could in turn cause him to miss time from work. The claimant stated that the WCB paid for snow removal up to $90.00 per month and that if he cleared snow and his back flared up, the amount in time loss for two days would exceed that amount.
On February 12, 1999, Review Office denied the claimant's appeal. Review Office indicated that it must first be determined whether the expense the claimant was requesting was a direct consequence of his compensable accident. Review Office considered that costs arising from a claimant's personal choice or change in circumstances unrelated to the compensable accident were not the responsibility of the WCB. Review Office stated, "Given that the claimant incurred the need to employ snow removal services as a result of a change of residence subsequent to his accident, Review Office is of the opinion that the WCB had no responsibility for same. It followed that the issue of whether the claimant was physically capable of performing large scale snow removal was moot."
Review Office also advised the claimant that he would not necessarily be compensated if he injured his back shovelling snow as each episode of an increase in back complaints must be adjudicated on its own merits.
On November 9, 1998, the claimant wrote to Review Office indicating as follows: "I have recently purchased a new home in Oakbank, Man with a much bigger driveway/sidewalk. I feel that I would be unable to clean and maintain this large area of snow during the winter season." In another letter dated, March 17, 1999, the claimant indicated, "looking at my old residence and my new residence it would be fair to say that the amount of snow is the same just in different areas." On November 8, 1999, a Review Officer took photographs of both residences which are located on file.
In a decision, dated November 12, 1999, Review Office determined that the claimant should be provided with limited snow removal services. Review Office indicated that the area requiring snow removal at the old residence was not inconsequential and that the claimant's compensable physical condition was such that he would have qualified for snow removal had he not relocated. Review Office was of the view that the new residence required considerably more snow removal than the old residence. As stated in its February 1999 decision, Review Office was of the opinion that the WCB had no responsibility for this increase.
Under the above circumstances, Review Office considered that the WCB should pay 50% of the snow removal costs of the primary use areas at the new residence after a sufficient snow fall. Not doing so would result in significantly increased lack of access for the claimant. Review Office, however, stated that the WCB was not financially responsible to assist the claimant in keeping all the areas of his property snow free.
Subsequent file documentation showed that the claimant felt he should be reimbursed 100% instead of 50% for costs associated with snow removal. A submission was advanced on his behalf by a worker advisor, dated February 8, 2000. On February 8, 2000, a non-oral file review was held.
There is no dispute with respect to the fact that the claimant's current physical restrictions preclude him from shoveling snow. Photographs of the claimant's former and present residence do not, in our view, demonstrate a significant increase in total area requiring snow removal. We accept the claimant's evidence that it would take relatively the same amount of time to clear the sidewalks and driveways of snow at either residence. Accordingly, we find that the claimant should be provided with full snow removal.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of February, 2000