Decision #24/01 - Type: Workers Compensation

Preamble

A non-oral file review was held on January 29, 2001 and February 8, 2001, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the cost of the claimant's yard maintenance should be paid by the WCB.

Decision

That the claimant's lawn maintenance costs should be paid by the WCB for 1999.

Background

During the course of his employment as a raise bore operator on April 23, 1999, the claimant sustained a crush injury to his left ring finger and hand between a brass bushing and a raise bore table. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits commenced on May 8, 1999.

In August 2000, the claimant advised a WCB adjudicator that he had been hiring someone over the past year to perform snow removal and lawn care services at his residence and wanted to be reimbursed for the associated costs. On September 15, 2000, a WCB Case Manager wrote to the claimant indicating that the WCB would only pay for snow removal costs as snow removal was considered a necessity of daily living whereas lawn care was not. The decision was appealed by a worker advisor on September 28, 2000.

On November 10, 2000, Review Office determined that the claimant's yard maintenance should not be paid by the WCB. When reaching this decision, Review Office noted that the invoice submitted by the claimant for yard maintenance included costs such as fertilizing, power raking, sand removal and aerating his lawn as well as cutting the lawn. Review Office indicated that fertilizing, power raking and sand removal were clearly outside the envelope of worker's compensation coverage. Review Office was of the opinion that grass cutting did not fall within the requirements of subsection 27(3) of The Workers Compensation Act (the Act) as grass cutting was not considered an activity of daily living. The Review Office's decision was later appealed by the worker advisor and a non-oral review was held on January 29, 2001.

Reasons

The issue to be determined in this appeal is whether or not the claimant is entitled to have the costs of yard maintenance covered by the WCB.

Under section 27(20) of The Workers Compensation Act, the board may make expenditures where it is determined that the claimant requires assistance in the activities of daily living. Such expenditures are discretionary.

There are no issues, in this appeal, in respect of medical ability to do the tasks related to lawn maintenance. The WCB has accepted the restrictions placed on the claimant, which restrict him from doing anything that involves using his left hand. We accept that lawn maintenance would require the active use of both hands.

Therefore, the issue to be determined is whether or not lawn maintenance is a necessary activity of daily living.

In respect of this particular claimant, the board had previously agreed to make expenditures under section 27(20) for removal of snow from his driveway and walkway, and for a daily taxi trip for such purposes as going to medical appointments and shopping.

The board denied his request to pay for his lawn maintenance costs, on the basis that such expenditures were not a necessary activity of daily living.

However, the panel notes that this matter is also covered by a new board policy - WCB Policy 44.120.30 - adopted on June 19, 2000, and which went into effect on October 1, 2000. Section D of this policy recognizes that "an injured worker may face an increased safety risk if day-to-day maintenance of the injured worker's residence (e.g., snow removal, lawn care, general home repair) is not kept up."

In conducting its review of this appeal, the panel came to the conclusion that the claim for lawn care falls squarely within the scope of this policy

The policy allows for support for independent living where:

  • The worker does not have any family resources to provide the service; and
  • Medical evidence shows that it is unreasonable for the injured worker to perform these tasks.

In considering whether or not it was reasonable to expect that the claimant's wife look after lawn maintenance, we noted that, in his letter of support for the appeal, the Worker Advisor noted that the claimant's wife had never taken care of lawn mowing in the past. We also noted that, when determining that the board would pay for snow removal, no expectation was placed on her to do that. This has persuaded us that the claimant's wife should not be expected to look after the lawn.

As noted above, the second element of this test is also met: the claimant is not medically able to perform lawn maintenance tasks.

The policy limits this type of support to a maximum of six months.

For these reasons, we are of the opinion that the WCB should accept responsibility for the cost of caring for the claimant's lawn for the year 1999, as per the invoice submitted for the amount $856.47.

Accordingly, we allow the appeal to the extent noted above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of February, 2001

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