The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 14, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the WCB should provide the claimant with legal assistance in the matter of the dissolution of his relationship.

Decision

That the WCB should not provide the claimant with legal assistance in the matter of the dissolution of his relationship.

Decision: Unanimous

Background

During the course of his employment as an electrician in October 1994, the claimant sustained a traumatic brain injury. The claim was accepted by the Workers Compensation Board (WCB) and various types of benefits and services were paid to the claimant which included vocational rehabilitation assistance.

On January 19, 2003, the claimant wrote to his vocational rehabilitation consultant to appeal the WCB's decision to deny coverage for his legal expenses incurred when a court action was initiated by his former spouse. The claimant felt that this legal proceeding was the direct result of his workplace injury. He further commented that nine out of ten relationships did not survive after one partner sustains a brain injury and that it was time for the WCB to accept its responsibilities in this matter. In support of his position, the claimant made reference to various reports on file dating from April 1997 through to November 2002. The adjudicator denied this request and the case was forwarded to Review Office for consideration.

In a decision dated February 14, 2003, Review Office determined that the WCB should not provide the claimant with legal assistance in the matter of the dissolution of his relationship. Review Office was of the opinion that whether there was a causal relationship between the claimant's injury and the dissolution of his relationship was moot. Review Office stated that workers compensation does not provide a remedy for every loss that can be related to a compensable injury. It considered that there was nothing in The Workers Compensation Act (the Act), WCB policy or WCB practices and procedures that contemplated providing assistance such as that requested by the claimant. On February 21, 2003, the claimant appealed Review Office's decision and an oral hearing was scheduled for December 14, 2004.

On December 7, 2004, the claimant provided the panel with a variety of documents including a number of social science articles detailing the long term effects of traumatic brain injuries upon caregivers and upon marital relationships. The claimant also included references from Ison's text, Workers Compensation in Canada (Ison) as well as an academic paper authored by the claimant dated April 16, 2004 titled The Worker Advisor Office: Window-dressing the compromised 'historic compromise'. Details of the claimant's progress in his university courses were also provided via a September 24, 2004 letter to a WCB psychiatrist. Included in that letter was a summary of the claimant's record at the University of Manitoba which noted the following academic results:

Mark statement 29 August 2000: Cumulative GPA 4.50;
Mark statement 25 May 2001: Cumulative GPA 3.88;
Mark statement 02 December 2002: Cumulative GPA 3.80
Mark statement 25 June 2003: Cumulative GPA 3.81
Mark statement 04 December 2003: Cumulative GPA 3.97.

An oral hearing was held on December 14, 2004. At the outset of the hearing, the claimant asked a number of questions related to the independence of the Appeal Panel and the role of its support staff as opposed to panel members in decision making. The Panel provided an oral response to some of the questions posed and also referred the claimant to its annual report.

The claimant proceeded to discuss some of the particulars of his argument. He helpfully referred the panel to a number of social science articles which detailed the impact of traumatic brain injuries upon the injured person, family members and marital relationships. He suggested that the probability of a breakdown in a marital relationship was greatly increased in circumstances where one of the partners had suffered a brain injury.

Later in his argument, the claimant emphasized the very painful experience that he and his former common law spouse had experienced in the break up of their relationship. He attributed much of their difficulties to the brain injury which he suffered. The claimant also suggested that the ongoing legal issues related to the dissolution of his relationship with his former common law spouse were unduly impairing his recovery. In his view, this was especially the case when one considered the added pressure of his schooling. The claimant argued that he required legal assistance to enable him to deal with matters related to the dissolution of his relationship in order to enable him to get on with his life.

The claimant also presented to the Panel his understanding of the historic roots of the workers' compensation system. In his view, "the Workers' Compensation Act's [sic] a historic compromise made between the interests of the employer and those of workers. It purports to provide 'no-fault compensation' for workers who suffer workplace injuries and diseases as well as relieving employers from litigation that could threaten the firms' survival." He noted s. 13(1) of the current Act provides a right to compensation in lieu of the right to action which would otherwise exist. He characterized the WCB system as a social insurance system with an overarching duty to achieve equity for injured workers as a result of the historic compromise by which their right to sue was withdrawn.

The claimant then went on to address the suggestion that the legislation does not provide a remedy to every injury. With regard to the specifics of his case, reference was made to s. 6.1.18 of Ison which provides:

"A board may sometime provide legal assistance, for example . . . assistance in the resolution of . . . matrimonial problems which combine with the disablements to impede a return to work. In one case, where a marital problem was impeding the recovery of the worker from a disability, the Board provided legal services for the completion of divorce proceedings which had been begun by the worker prior to the injury."

Reference was also made to the following comment from s. 6.1.26 of Ison:

"[I]n Manitoba, the general rule has been reported to be that 'only those services that are necessary to return the worker to employment or that can be demonstrated to be cost effective should be considered'. Any such rule abandons many types of rehabilitation assistance. Apart from objections on humanitarian, therapeutic, social and economic grounds, it is at least arguable that for a board to create such a constraint is an unlawful fettering of its discretion."

Reference was also made to what was characterized as the discretionary and enabling language within the legislation, in particular s. 27(20) of the Act, and Board Policy 44.10.30.60. The claimant argued that it was within the statutory jurisdiction of the Panel to grant the remedy sought by the claimant. He argued that taking into account the historic compromise and reading the legislation in the spirit of the Canadian Charter of Rights and Freedoms, the Board had an overarching duty to do what was right and equitable. Just as the Board had offered to let his then common law spouse take relationship counseling, it also had the authority and the duty to assist him with the legal services he required to address the dissolution of his relationship.

Reasons

At the outset of its reasons, the Panel would like to thank the claimant for the respectful manner and the insight he brought to the oral hearing. The Panel recognizes that the issues relating to the breakdown of the claimant's relationship are painful and difficult. We appreciate the openness, organization and innovative thinking which the claimant brought to his submissions.

The Claimant's Submissions

At the heart of the claimant's argument is the assertion that the breakdown is a compensable sequela of the accident. He cites statistical data which suggests that there is a greater probability of marital breakdown in the families of those with traumatic brain injuries. He suggests that the pattern of his relationship's breakdown fits within that pattern. He argues that his recovery from his accident is being hindered by his inability to put the breakdown of his relationship behind him. He claims that the provision of legal assistance to assist with the matter of the dissolution of his relationship is essential to his ability to get on with his life.

Finally, the claimant argues that the Board has jurisdiction under the Act and its policies to grant him the remedy he seeks. In particular, he points to s. 27(20) of the Act which provides:

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;
(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or
(c) requires assistance in the activities of daily living.

The claimant cites Ison for the proposition that in certain cases it may be appropriate to provide legal assistance in the matter of a relationship breakdown when the issues surrounding that breakdown are hindering the claimant's recovery from his or her injury. In the alternative, he argues that the Panel has an overarching authority to do what is right and equitable. Given his submission that the breakdown of the relationship was a result of the traumatic brain injury, it would be just and equitable to provide him with legal assistance related to the dissolution of the relationship.

The Panel's Findings

In considering the claimant's arguments, it is helpful to recognize that the Appeal Commission and individual Appeal Panels are creatures of statute. The authority that the Panel holds flows from the statute either expressly or by necessary implication (see s.60.8(2) and s.60(1) of the Act). While the Panel has exclusive jurisdiction upon appeal or reference to determine "any matter or thing in respect of which any power, authority, or discretion is conferred upon the board . . .", it cannot step outside the ambits of this authority. While it is inappropriate to fetter any such discretion the Panel may possess, it is equally inappropriate to step outside the jurisdiction of the Panel and to employ an authority which does not exist.

While the Panel has carefully considered the claimant's innovative submissions, it has determined that the WCB should not provide the worker with legal assistance in the matter of dissolution of his relationship.

With regard to the claimant's submission that his relationship breakdown was a compensable sequela of his physical injury, we note that the workers compensation legislation represents the historic trade-off between workers and employers. The Act lists a number of defined losses from an injury, and the associated benefits which shall be provided to claimants who are hurt at work (see for example, s. 4(3) wage loss benefits, s. 4(9) compensation for impairment, and s. 27(1) medical aid). The Act is not intended to be a perfect compensation scheme covering all losses arising out of a workplace accident, and this element of the historical trade-off has been consistently recognized by Canadian courts.

In this case, the particular benefits sought by the claimant (the payment of his legal fees) do not fall within the rubric of the types of losses compensated for in the Act, regardless of whether the claimant can establish a causal link between his workplace injury and his relationship breakdown. Therefore, there is no defined compensable loss under the Act that would allow for payment of the legal costs associated with the dissolution of the claimant's relationship.

The Panel also does not accept the claimant's contention that there exists an overarching duty to do what it considers equitable, in the absence of a defined benefit, which would trump the limits of its express or necessarily implicit jurisdiction. We find that, as a creature of statute, the Panel's authority must flow from the statute, as noted in s.60.8(2) and s. 60(1) of the Act.

With regard to the claimant's submission under s. 27(20) of the Act, the Panel notes that this section allows the Board to consider discretionary payments to remove handicaps resulting from the injury, in other words, remove barriers (compensable and non-compensable) to the completion of a vocational rehabilitation plan. However, we find that the claimant's situation is not analogous to the reference cited by Ison in which a Board in another Canadian province provided legal services for the completion of divorce proceedings where a marital problem was impeding the recovery of the worker from a disability.

In this case, the Panel notes that a vocational rehabilitation plan (V.R.P.) is being funded for the claimant. The Panel also observes, based upon the September 24, 2004 letter of the claimant to the WCB psychiatrist, that the claimant appears to be excelling in his academic program with a Grade Point Average consistently at or above 3.8. While the Panel has no doubt that the circumstances surrounding the dissolution of his breakdown are very painful for the claimant, it finds, based upon a balance of probabilities, that he has not demonstrated that the lack of legal assistance or the circumstances surrounding the dissolution of his relationship are affecting his academic performance or the success of his V.R.P.

Given this finding, the Panel has determined that the provision of legal services to assist in the matter of the dissolution of his relationship is not necessary or advisable in order to reduce or remove the effect of a handicap resulting from the injury. Given the specific fact situation of this case, the Panel is of the view, that the provision of the legal services requested by the claimant does not fall within the meaning of "academic or vocational training or rehabilitative or other assistance" under s. 27(20).

Given its factual findings and the limits of its statutory authorization, the Panel finds that it cannot give the claimant the remedy he seeks. The claimant's appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of February, 2005