Decision #22/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 19, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the WCB should finance the purchase of a hydrostatic tractor.

Decision

That the WCB should not finance the purchase of a hydrostatic tractor.

Decision: Unanimous

Background

During the course of his employment as a miner on May 28, 1969, the claimant was standing on top of a muck pile when he was struck by loose. As a result of the accident and his injuries, the claimant received a 100% Permanent Partial Disability award.

On June 12, 2002, the claimant contacted his case manager to determine whether or not the Workers Compensation Board (WCB) would consider purchasing him a new tractor for approximately $43,000.00. The claimant noted that his riding lawn mower needed repairs and he thought about replacing it with a larger tractor. The case manager documented that the claimant and his wife lived in a rural area on 15 acres of land. Two acres was grass where his house and garage were situated. The other 13 acres were used for growing hay, a runway for his airplane, etc. The new tractor came equipped with a lawn mower deck, tiller, backhoe and a front end loader.

In a response dated July 11, 2002, the claimant was advised by his case manager that she was unable to approve his request to purchase a new tractor. The case manager noted that the claimant was currently receiving $200 per month (Independent Living Allowance) to cover such expenses as snow removal, lawn care and cellular phone coverage. This amount could be used to hire someone to perform these services and/or the claimant could put the amount towards the purchase of equipment that he could operate himself. The case manager reiterated this decision to the claimant in a further letter dated September 20, 2002.

On June 6, 2003, the case was considered by Review Office following receipt of an appeal by the claimant who disagreed with the case manager's decision as noted above. In its decision dated June 6th, Review Office commented that the WCB would provide financial support for independent living to severely injured workers that reflected the reasonable level of need for the worker. The WCB could also provide support for independent living for as long as the compensable injury prevented day-to-day maintenance and housekeeping of the worker's residence.

In the case at hand, Review Office noted that the independent living allowance had been implemented to help the claimant with the duties that he was unable to perform around his home ($200). In addition to this, the claimant had been provided with a four-wheeler and a scooter. Review Office concluded that the claimant did not reasonably need the tractor and that it was not a reasonable expectation/requirement under the WCB's policy for Support for Daily Living or under the Medical Aid policies. Therefore, Review Office felt that the WCB should not finance the purchase of a hydrostatic tractor. On August 15, 2003, the claimant disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

This appeal involves a worker who, as a result of a 1969 compensable injury, was awarded a 100% permanent partial disability pension. The appeal arose out of his request that the board purchase him a new hydrostatic tractor. This request was turned down by the case manager, which decision was upheld upon reconsideration by Review Office.

For his appeal to the Appeal Commission to succeed, the Appeal Panel would have to determine that the purchase of such a tractor was justified pursuant to legislation and/or board policy. We were not able to make that determination.

In coming to our decision, we conducted a review of the claim file, and held a hearing at which we heard testimony from the claimant.

Pursuant to The Workers Compensation Act and board policy, the purchase of such a tractor might be allowed as part of a vocational rehabilitation plan, as necessary medical aid or as an aid to independent living.

In respect of vocational rehabilitation, such a tractor might be provided if it were essential to a business or occupational plan to return the claimant to gainful employment. That is not the case here.

Under board policy 44.120.10, Medical Aid, in order "to minimize the impact of workers' injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices, including … wheelchairs … and other devices."

"Other devices" have included scooters, all-terrain vehicles and riding mowers, some of which have been provided to the claimant.

There is no medical need to provide the claimant with a tractor such as that requested.

Board policy 44.120.30, Support for Daily Living, allows for the provision of additional benefits to severely injured workers. Such benefits include assistance for independent living. The relevant section of the policy states, in part:

The WCB recognizes that a worker may face an increased safety risk if day-to-day housekeeping or maintenance of the worker's residence (e.g., snow removal, lawn care, general home repair) is not kept up. In many cases, it may be impossible to perform such tasks after the accident. Although family members often assist workers in performing these tasks, it is not always possible for family resources to provide extended periods of additional maintenance or housekeeping services."

Type of Services - Includes an allowance for day-to-day maintenance and housekeeping at the worker's residence (e.g., snow removal, lawn care, general home repair, housekeeping, laundry, etc.).

Severely Injured Workers - The WCB will provide financial support for independent living to severely injured workers that reflects the reasonable level of need for the worker.

The policy allows for a payment to a maximum of $211.00 per month effective October 1, 2003, but adds:
"This maximum may not apply to severely injured workers as financial support for daily living is based on the reasonable level of need for the worker."
In written submissions to the board, as well as in his testimony before the panel, the claimant gave as reasons supporting his request:
  • The tractor would provide him with considerably added safety. His current tractor has a manual transmission, which is increasingly difficult for him to use, given the disabilities to his legs.

  • It would make his life fuller, allowing him to do a lot of things around his property that he is unable to do with the old tractor.

  • It would allow him to make a little extra money.
These arguments attest to the claimant's creativity in dealing with his impairment. Nonetheless, his request does not meet the requirements of the policy. While the policy does allow for benefits in excess of the stated monthly maximum for severely injured workers, it also states that it will meet a "reasonable level of need."

It is our view that the requested tractor surpasses a "reasonable level."

Even though the Appeal Commission is an independent tribunal, we are bound in statute to follow board policy when making our decisions. This means that, even though we may sympathize with the claimant's request, if it does not comply with the policy, we can not grant the request.

Accordingly, the appeal is dismissed.

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 2nd day of February, 2004

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