The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 8, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on November 8, 2004 and again on December 16, 2004.

Issue

Whether or not the worker is entitled to payment of an Independent Living Allowance beyond October 1, 2004.

Decision

That the worker is entitled to payment of an Independent Living Allowance beyond October 1, 2004.

Decision: Unanimous

Background

On April 23, 1999, the worker was involved in a mining accident which necessitated the amputation of his left ring finger. The Workers Compensation Board (WCB) accepted responsibility for the claim and benefits and services were paid to the worker.

On June 27, 2003, the WCB advised the worker that an ILA (independent living allowance) would be approved at $125.00 per month to cover the costs associated with lawn care, snow removal, eaves trough and window cleaning.

In further correspondence dated April 1, 2004, the WCB informed the worker that the WCB could not extend his ILA for more than six months or up until October 4, 2004. Reference was made to WCB policy 44.120.30, Support for Daily Living ("the policy") which outlined the definition of an "injured worker" and "severely injured worker". As the worker was considered by the WCB to meet the criteria of an injured worker, he would only be entitled to six months of ILA assistance. On April 22, 2004, the worker appealed this decision to Review Office. The worker contended that the medical evidence on file clearly established that he was a severely injured worker with a significant left hand impairment.

On August 6, 2004, Review Office confirmed that the worker was not entitled to ILA beyond October 1, 2004. Review Office believed that the worker could not be classified as a seriously injured worker under the policy. Review Office stated, "Although he has a limb amputation, it is not a major limb amputation; and he does not require assistance with communication, mobility or self-care as a result of the workplace accident. Therefore, Review Office is of the opinion that the case manager in Rehabilitation and Compensation Services has applied board policy incorrectly, in providing ongoing ILA to this worker. There is no further entitlement to Independent Living Allowance in the case of this worker."

On September 23, 2004, a worker advisor, acting on behalf of the worker, appealed Review Office's decision to the Appeal Commission. The worker advisor contended that the worker continued to have left hand restrictions that prevented him from performing yard tasks. It was the worker's opinion that he met the requirements of the policy given his right hand restrictions and because there was no available family members to perform the yard work for him.

On November 8, 2004, a non-oral file review was held at the Appeal Commission when it was determined that clarification was required from the WCB with respect to the policy. Clarification of the policy was later obtained from the WCB and it was forwarded to the worker and worker advisor for comment. On December 16, 2004, the Panel met to further discuss the case and render its final decision.

Reasons

The issue before us was whether the worker is entitled to receipt of an Independent Living Allowance beyond October 1, 2004. For this appeal to succeed we must find that the worker's circumstances meet the requirements of the policy. We did find that this worker's circumstances meet the requirements of the policy and that he is entitled to receive an ILA.

Legislation and Policy

The WCB's authority to pay ILA's arises from subsection 27(20) of The Workers Compensation Act (WCA). Paragraph (c) of this subsection provides the WCB with the discretion to make expenditures from the accident fund to assist injured workers who may require assistance with activities of daily living.

The Board of Directors of the WCB has made Policy 44.120.30 which deals with support for daily living. ILA's are paid in accordance with this policy. Independent Living is dealt with under section D. of this policy. The Purpose 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…"

The policy defines severely injured worker and injured worker. A severely injured worker is one who requires temporary or permanent assistance with communication, mobility or self care as a result of a work injury. The policy provides some examples of cases considered to be severely injured such as major limb amputations.

The policy provides that severely injured workers and injured workers may receive different assistance. Injured workers are eligible to receive limited benefits for a maximum of six months. Severely injured workers are eligible for support for daily living as long as the compensable injury prevents day-to-day maintenance and housekeeping of the worker's residence.

Under section B. Eligibility, the policy provides that the WCB will examine all evidence about the worker's injury to determine whether the worker needs support. This section further provides that where there are unique circumstances, the worker may be eligible for additional or alternate support services.

Analysis

The issue in this case revolved around whether the worker was a severely injured worker or an exceptional case as envisioned by the policy. If so, the worker is entitled to continue to receive an ILA to assist with home maintenance, if not the worker is entitled to limited assistance which he has already received.

We found the policy difficult to interpret and apply so sought clarification on how the WCB implements the policy. We received the following response in a memo from the WCB dated November 29, 2004:

"Relative to the issue of how we implement the policy relative to workers with permanent medical restrictions, it is most fair to say that we consider each case on its individual merits subject to the general intent of the Support for Daily Living policy (policy no. 44.120.30). The policy outlines a distinction between what it terms injured workers and severely injured workers and includes examples of what might be termed severe injuries. These examples are not intended to be exhaustive but can be considered instructive relative to what might be termed severe. There may (sic) injuries or combinations of injuries that could be found to be as severe as the ones found in the policy. Case Managers have been instructed to use discretion in determining individual entitlement."

We found this comment to be helpful. It confirms our opinion that the examples provided in the policy are not exhaustive and that each case is considered on its merits. This is also consistent with section B of the Policy which recognizes the need to consider the merits of each case and that unique cases may be eligible for additional or other benefits.

We have considered all the evidence surrounding this worker's case. While a major limb was not amputated, we find that the consequence of the amputation in this case is similar to the consequence of some major amputations. This worker still has his hand, but the hand has no function and in fact generates severe debilitating pain. It cannot be used for any purpose and due to hypersensitivity, can be painful to even wash. Having considered the merits of this case and the worker's unique circumstances, we find this to be an exceptional case as provided by the policy and that the worker is eligible for additional benefits. The worker is to be treated as a severely injured worker for the purposes of the policy and accordingly is eligible for an ILA.

In arriving at this decision we place significant weight on the opinion provided by the worker's treating physician, a specialist in plastic and reconstructive surgery. The specialist noted that the worker shows significant hypersensitivity in the vicinity of the neuroma excision. In a report dated April 2003 the specialist commented regarding the worker's hand:

"…He is aware that he will always have some degree of pain in his hand that will significantly limit the activities. He will not be able to do any form of lifting, gripping, pinching, pushing, or pulling activity with the hand, which also limit his functional capacity of the hand and require him to modify his activities significantly."

The appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of January, 2005