The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 5, 2006, at the worker's request.

Issue

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

Decision

That the worker is not entitled to an Independent Living Allowance beyond October 2004.

Decision: Unanimous

Background

The worker suffered a work related back injury from a lifting incident in 1986. He is presently in receipt of vocational rehabilitation benefits from the Workers Compensation Board (WCB) and has permanent restrictions to avoid heavy lifting, repetitive bending or standing for long periods of time.

On September 8, 2004, a WCB case manager informed the worker that his entitlement to an Independent Living Allowance (ILA) had been reviewed and that he would be paid to October 2004 inclusive and final. WCB policy 44.120.30, Support for Daily Living, was referenced in the decision. The case manager noted that the policy provided an injured worker with an ILA for a maximum period of six months. As the worker had been in receipt of the allowance for a period greater than six months, his ongoing eligibility for the allowance would be limited.

In a letter dated September 16, 2004, the worker appealed the above decision to Review Office. The worker stated:

"…This action will leave me to do my own lawn and snow removal. I have had two major spinal fusions that limits my mobility and strength to bend and lift. If I am left to take care of these chores it will put me off work due to injuries caused by these actions and it would also be a financial burden. I have been receiving ILA since September 21, 2001 and now I am told it is strictly for paraplegics, which is what I will be if I have to shovel snow and cut the grass.

Workers Compensation have provided me with special office equipment to take the pressure off my spine and then on the other hand I am been told that I will have to do hard physical work on my yard. This seems very contradicting and unfair and it jeopardizes my injuries and my financial state."

On September 24, 2004, Review Office confirmed that the worker was not entitled to an ILA subsequent to October 2004. Review Office noted that the worker was considered to be an injured worker as opposed to a severely injured worker under WCB policy 44.120.30. It stated that the policy allowed for injured workers to receive up to six months of financial assistance to a maximum rate and that entitlement ended after that time. Review Office noted that the policy allowed for the provision of the allowance beyond six months in "unique circumstances" but that the worker's situation did not meet this criterion. Review Office concluded that the worker had already received an ILA in excess of the six month maximum period and was not entitled to this benefit subsequent to October 2004. On September 26, 2005, the worker appealed Review Office's decision and a non-oral file review was arranged. On December 5, 2005, the worker provided the Appeal Panel with further argument to support his position that he was entitled to an ILA beyond October 2004.

Reasons

The worker in this case had a workplace injury in 1986 and continues to have medical restrictions from that injury. He had received financial support from the WCB to assist him with snow removal, but those benefits were discontinued by the WCB as of October 2004. He has appealed that decision to this panel. This case was heard by way of a non-oral review.

For the worker to succeed, we would have to find that he had a continuing entitlement to financial assistance, as defined by The Workers Compensation Act (the Act) and supporting policies. In particular, we would have to find that the worker was "severely disabled" as defined by WCB policy 44.120.30. We were not able to make that finding, and accordingly, we find that the worker's appeal is not successful.

Applicable Legislation and WCB Policy

The WCB's authority to pay ILA's arises from subsection 24(1) of the Act in effect at the time of the worker's injury which 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 which 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 who is a "severely injured worker" and an "injured worker".

The policy provides that severely injured workers and injured workers may receive different types of 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.

Evidence and Analysis

The worker has put forward the position that his medical restrictions arising out of his workplace injury are such that he is unable to undertake daily living activities such as snow removal, and thus he should continue to receive support from the WCB for payment of those expenses.

Based on our reading of Policy 44.120.30, the issue is not whether the worker is medically restricted from doing the work duties, but rather whether he falls into the category of a severely injured worker.

Policy 44.120.30 outlines a distinction between what it terms injured workers and severely injured workers and includes examples of what might be termed severe injuries. Examples include major limb amputations, significant brain injuries, terminal occupational illness, paraplegia, quadriplegia and the like. While this list is not exhaustive, it does provide a framework against which we can assess this worker's work injuries.

The issue in this case revolves around whether the worker is 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. It should be noted that the panel is bound by the Act and by the policies.

We note from the medical evidence on the file that the worker suffered a low back injury at his workplace in 1986, which resulted in two surgeries. He was eventually provided with permanent workplace restrictions to avoid heavy lifting, repetitive bending, and standing for long periods of time. The worker continues to work in alternate duties.

The panel has compared the worker's injuries to the two categories noted in the Policy, and finds on a balance of probabilities, that the worker qualifies as an "injured" worker. Even though he has medical restrictions that preclude him from doing activities around his house, his injuries do not approach the types of injuries that are suggested by the sample list of "severely injured" workers.

As a consequence, we cannot grant support beyond the stated maximum duration for workers classified as "injured" under the policy. The evidence confirms that the worker received independent living support for a maximum of six months, as allowed under the policy. Accordingly, we find that the worker is not entitled to an ongoing monthly independent living allowance.

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 13th day of February, 2006