The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 2, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to a continuing independent living allowance.

Decision

That the worker is not entitled to a continuing independent living allowance.

Decision: Unanimous

Background

In June 2002, the worker incurred a tear to his right biceps muscle during the course of his employment as a bucket truck operator. The Workers Compensation Board (WCB) accepted the claim for compensation and various types of benefits were paid to the worker, including vocational rehabilitation assistance.

Over the course of the claim, a number of discussions took place between the worker and the WCB with respect to his eligibility for an Independent Living Allowance (ILA). The following is a brief summary of what was considered and paid for by the WCB:

• September 2002 - the worker was given a one time payment of $250 to subsidize wood heating costs for his home.
• November 6, 2002 - a WCB case management representative authorized the costs for chimney cleaning on a "one time basis only".
• November 25, 2002, a WCB case management representative authorized $75.00 per month for snow removal services starting November 2002.
• March 17, 2003 - the worker enquired whether the WCB would pay for snow removal for the month of March because of snow around his basement windows. He also asked if he would be covered for lawn maintenance and yard care throughout the summer. Later in the day, the worker was advised that the WCB would pay for snow removal during the month of March and that yard maintenance would be considered once further medical information was obtained.
• April 4, 2003 - the WCB advised the worker that he was paid a total of $450.00 for the 2002/2003 winter season and that this amount sufficiently covered the costs of snow removal based on the amount of snow received in the 2002/2003 winter season.
• May 6, 2003 - a WCB rehabilitation specialist indicated that she discussed the worker's request for ILA to allow for grass cutting and yard clean up with a WCB medical advisor. She stated, "...it would not be unreasonable for Mr. [the worker] to complete his yard care. It is recognized that he may have to complete the work in stages." Based on this finding, the worker was advised that he did not qualify for ILA (memo dated May 8, 2003 to the file).
• September 29, 2003 - the WCB advised the worker that he would be paid $250 for firewood. Assistance for lawn care costs would not be covered as the medical information did not indicate that the worker could not perform this task. Costs associated with chimney cleaning would not be covered by the WCB as this was considered part of "normal home maintenance" and something that the worker would not do on his own. Costs associated with snow removal would be covered the same as last year at $75 per month, from November to March 2004.
• December 23, 2003 - the WCB confirmed to the worker that his case had been reviewed concerning his entitlement to ILA for the summer months. It was the WCB's position that the worker was capable of performing his own lawn maintenance.

On January 23 and February 16, 2004, the worker wrote to the WCB, outlining a number of issues concerning his claim.

In a decision dated February 19, 2004, the WCB denied the worker's request for a snowblower, lawn mower and shed. The case manager stated:

"The WCB has implemented an allowance of $75 per month to assist with snow clearing expenses as per the WCB's Independent Living Policy. As an injured worker, this amount has been determined to be adequate in assisting with snow removal, and is provided as an allowance only and not to compensate for all possible expenses with regard to snow fall."

In the same decision, the case manager denied the worker's request for a family membership at the Wellness Centre and personal trainer as "…there is no medical recommendation or rationale for this recommendation…" With regard to spring and fall maintenance, the case manager stated, "Your current compensable restrictions are to avoid work above shoulder level and lifting greater than 20 lbs. Based on the medical information provided, you would be considered capable of operating a lawnmower, as well as raking, if done in stages."

In a subsequent decision dated June 18, 2004, Review Office confirmed the case manager's decisions of February 19, 2004. Review Office made reference to certain subsections of The Workers Compensation Act (the Act) as well as WCB policy in determining that the worker was not a severely injured worker and was only entitled to six months of ILA.

In March 2005, a worker advisor, acting on behalf of the worker, appealed Review Office's decision of June 18, 2004 concerning the worker's entitlement to an additional ILA and an oral hearing was requested. The worker advisor contended that the worker was entitled to an ILA on an ongoing basis given his compensable injuries to his right arm and shoulder.

Reasons

WCB policy 44.120.30 "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 as 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." The provision of support to an injured worker for independent living is discretionary on the part of the WCB and only for a maximum of six months at an established level, unless the worker is severely disabled in accordance with a series of categories listed in the policy.

As the background notes indicate, the worker has advanced the argument that he is entitled to a continuing ILA. The evidence confirms that the worker has received six months of financial assistance up to a maximum rate. We find that the worker is not medically disabled to the degree contemplated in the policy, that would allow the six month maximum to be waived.

Subsection 60.8(6) of the Act unequivocally provides that the Appeal Commission is bound by the policies of the Board of Directors. Inasmuch as the injured worker has received the maximum six months support for independent living, we find that he is no longer entitled to a continuing allowance. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, R. Lafrance

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of July, 2005