Decision #102/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held by teleconference on April 28, 2005, at the worker's request. The Panel discussed this appeal on the same day.Issue
Whether or not the worker is entitled to an ongoing monthly Independent Living Allowance;Whether or not the worker is entitled to additional wage loss benefits for the period he was awaiting a return to work; and
Whether or not the worker should be compensated for missed employer pension and long term disability premiums.
Decision
That the worker is not entitled to an ongoing monthly Independent Living Allowance;That the worker is not entitled to additional wage loss benefits for the period he was awaiting a return to work; and
That the worker should not be compensated for missed employer pension and long term disability premiums.
Decision: Unanimous
Background
During the course of his employment as a welder on June 25, 1998, the worker sustained a crush injury to his left foot which resulted in multiple fractures and dislocations of the metacarpals, phalanges and cuboid of the left foot. The worker underwent a number of surgeries which included amputation of two toes, partial amputation of a third toe and surgery to correct defects of his remaining toes. In 2000, the worker was awarded a 15% impairment award. In April 2001, the worker underwent "left second toe PIP joint arthrodesis with left second toe extensor tendon lengthening and excision of exostosis from left fifth metatarsal".During the early stages of the claim, the WCB provided the worker with home care assistance (i.e. personal care, home management and meal preparation) as he was unable to weight bear on his left foot. The WCB also provided the worker with the costs of a recliner chair and a gym membership. Snow removal costs were also provided by the WCB for the years 1998/1999.
On October 24, 2000, the worker advised the WCB that he was having difficulty with regular maintenance/cleaning duties around his home as his foot would swell. He asked whether the WCB would cover the costs associated with these activities.
In December 2000, a WCB rehabilitation specialist met with the worker to review independent living issues. In a memo dated December 11, 2000, the rehabilitation specialist noted that the worker lived alone in a war time bungalow. The worker was able to carry out most of his own home repairs prior to the accident. The worker noted that in the spring he had to put new fascia and soffits around his garage and would require assistance to get a spring cleaning done around his home, i.e. walls and high windows. The rehabilitation specialist referred to the new Independent Living Allowance Policy #44.120.30, which allowed for a benefit to be provided for such continuing home management tasks. As the worker's restrictions precluded him from getting up on ladders or uneven surfaces that required balancing, it was felt that the worker would qualify for some type of an allowance. The worker agreed to get an estimate for the work to be done in the spring and the rehabilitation specialist stated, "We have a tentative agreement to pay for the labour but not the materials."
In a further memo dated April 9, 2001, a WCB case manager documented that the worker wanted to know if he would be eligible for lawn maintenance during his convalescence from surgery as he would have a hip cast that would prevent him from doing his own yard maintenance. The case manager felt that the request seemed reasonable and that the worker was instructed to contact him when the need arose. The issue of spring cleaning was already addressed and would not be a problem according to the case manager.
In a subsequent correspondence the WCB's rehabilitation specialist noted that the worker's largest concern was the laundry in the basement, vacuuming and lawn care. He also stated that he had some assistance from a friend. Based on this information, the following recommendations were made:
- the WCB would cover 3 hours per week of home care assistance at $11.00 per hour;
- to pay the worker's friend $198.00 for a period of six weeks to perform lawn maintenance for the worker and then a further review at a later date.
Between 2001 and 2003, the worker performed his pre-accident job duties with modifications that were made to his position as a welder. In May 2003, the worker was temporarily laid off by his employer and the WCB reinstated his wage loss benefits as the worker was considered to be at a competitive disadvantage compared to other workers. In November 2003, the worker was scheduled to return to work with the accident employer but was unable to do so as the employer could not accommodate him with a position that respected an added permanent restriction, i.e. to avoid working on concrete surfaces for prolonged periods of time.
Between November 2003 and January 2004, several discussions took place between the worker and his case manager with respect to severance packages, retirement issues, etc. and its potential impact on his WCB benefits. On February 4, 2004, the worker advised the WCB that he was not being offered the severance package by his employer and that he was filing a complaint.
On February 5, 2004, the WCB informed the accident employer that the worker's case was being referred for an initial assessment with a WCB vocational rehabilitation consultant as the employer was unable to accommodate the worker with permanent work within his compensable restrictions.
In April 2004, the worker returned to modified duties with the accident employer. In August 2004, the worker advised the WCB that he had taken a bridging package from his employer and would be moving to Ontario.
On August 24, 2004, the worker outlined a number of concerns pertinent to his claim. In a written response dated September 2, 2004, the WCB case manager outlined the following decisions to the worker:
- The worker requested payment of $600.00 for lawn care during the period July to October 1998. The case manager stated she was unable to provide for this payment as the WCB had already provided reasonable compensation, i.e. VON Services for cleaning, meal preparation and other miscellaneous costs associated with home care after the injury and snow removal services from November 1, 1998 to March 31, 1999.
- The worker requested $4,575.00 for the total length of his disability calculated as $75/month for back payment. The case manager stated:
-the worker did not provide the WCB with quotes for a new fascia and soffits around his garage as was instructed by the WCB's rehabilitation specialist in December 2000. It was agreed at that time that the WCB would consider covering the costs of labour but not the materials;
-following surgery in 2001, a lump sum payment of $198.00 was made as the worker advised the WCB that a friend was to provide home care services;
-Independent Living was assessed twice in 2000 and arrangements were made based on the difficulties at the time. The case manager stated "Therefore, I am unable to reimburse you for a total of 73 months or $4,575.00 - As the policy outlines a maximum of up to 6 months".
- The worker requested payment of $7,758.00 for reimbursement for pension plan and long-term disability for the period effective September 2003 as the worker stated his case manager refused to allow him to return to work, which in his opinion was contrary to WCB policy 43.20.20. The case manager stated she was unable to provide for this payment. "The WCB provided for payment of wage loss benefits during this period of lay-off with [employer]. Our legislation does not provide for payment into injured worker's long term disability or pension plans. Payment of wage loss benefits was paid during the period in which the employer could not provide accommodation within the compensable restrictions…". Subsections 4(1) and 39(1) of The Workers Compensation Act (the Act) were referenced to in this regard.
- The worker requested an ongoing payment of $75.00 per month for the remainder of his life for tasks that he was unable to perform. The case manager stated that the WCB's policy on Independent Living provided for a 6 month maximum, therefore no provisions were available to cover this cost.
In a decision dated November 26, 2004, Review Office determined that the worker was not entitled to a monthly Independent Living Allowance but may be entitled to a limited Independent Living Allowance. Review Office felt that the worker was entitled to an independent living allowance of a maximum of six months duration, to be calculated at the current maximum rate of $218.00 per month (a total of $1,308.00) minus allowances already provided for lawn care, snow removal, home maintenance, repairs and other similarly related benefits. Review Office directed the WCB to calculate the worker's residual entitlement and to make this a one time only payment (with the exclusion of the home care costs that were provided to the worker through a nursing agency which provided post-operative dressing changes and assistance with meal preparation and hygienic activities.)
Review Office also determined that the worker should not be compensated for lost wages, pension and long term disability benefits. Review Office stated that the Act specifically stated that the WCB cannot pay wage loss benefits greater than the percentages set out in (a) and (b) of subsection 39(5) and to do so would be in violation of the Act. There was no provision in the Act to compensate a worker for lost pension or other benefits he would normally receive from his employer. Therefore, the worker was provided with appropriate wage loss benefits and received his full entitlement.
On December 7, 2004, the worker was issued a cheque for $690 which represented the difference between the maximum independent allowance of $1308.00 and the services that have been provided to date which totaled $618.00.
In January 2005, the worker disagreed with Review Office's decision and an oral hearing was held by teleconference.
Reasons
Subsection 27(20) of the Act enables the WCB to make discretionary expenditures from the accident fund for academic or vocational training, rehabilitative or other assistance to an injured worker. As an adjunct to this subsection, the Board of Directors implemented policy 44.120.30 entitled ‘Support for Daily Living’. The policy purpose is stated as follows:
“This policy co-ordinates the WCB’s approach to supporting workers’ participation in daily workplace and personal activities after an accident. The purpose is to assist, and to allow, workers to be independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products.”
A portion of this policy deals specifically with the concept of independent living. The WCB recognizes that it may be impossible for an injured worker to perform many housekeeping or maintenance tasks around his residence following an accident. According to the policy, in such circumstances the WCB “may provide injured workers support for independent living for a maximum of six months …’.
The Act clearly states that the Appeal Commission is bound by the policies of the Board of Directors. As a consequence, we cannot grant support beyond the stated maximum duration. The evidence confirms that the worker received independent living support for a maximum of six months. Accordingly, we find that the worker is not entitled to an ongoing monthly independent allowance.
With respect to the second issue, the worker is seeking what may best be described as a top up of the wage loss benefits that have been paid to him. The Act provides that an injured worker, who experiences a loss of earning capacity, will be paid 90% of such loss up to a maximum of 24 months and 80% thereafter. The worker advances the argument that he should be entitled to a full 100% of his wage loss. With all due respect, the Act is quite unequivocal in its language and therefore we find that the worker has been paid the maximum allowable wage loss to which he was entitled.
As to the third and final issue under appeal, the worker was claiming to be compensated for missed employer pension and long term disability premium contributions. We find that such contributions would be over and above the maximum allowable wage loss benefits to which he was entitled and in addition there is no provision contained in the Act allowing for reimbursement of same. Accordingly, the appeal of this issue is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 21st day of June, 2005