Decision #46/06 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on February 23, 2006, at the worker's request. The worker appeared and presented evidence. No one appeared on behalf of the employer.Issue
Whether or not the worker is entitled to an independent living allowance.Decision
That the worker is not entitled to an independent living allowance.Decision: Unanimous
Background
Reasons
BackgroundThe worker suffered multiple compensable injuries over the course of his employment, which left him with several permanent restrictions, including:
- No lifting more than thirty pounds;
- Avoid lifting more than twenty five pounds repetitively;
- Avoid kneeling, squatting, bending and stair climbing;
- Avoid continuous walking over thirty minutes without an opportunity to rest, if needed;
- Avoid continuous standing over one hour without the opportunity to rest for thirty minutes in between;
- Avoid work above shoulder height;
- Avoid repetitive twisting of the shoulders.
However, when the worker applied for an ILA in 2005, he was advised by his case manager at the WCB that he was no longer entitled to it as he had been receiving it since 2001.
The worker appealed the case manager's decision to the Review Office which upheld it on November 4, 2005. It is this November 4, 2005 decision that the worker appeals.
Worker's Position
The worker takes the position that he should be entitled to the ILA to assist him with snow clearing for the following reasons:
- The ILA policy is quite broad in scope;
- In determining his entitlement to an ILA, all of his compensable and non-compensable injuries and restrictions should be considered;
- His left knee condition has deteriorated since September, 2005; blood pools in the joint causing swelling and difficulties walking;
- He does not have the financial resources to hire a contractor or buy a snow blower;
- He has applied for and received an ILA for snow clearing since 2001; the WCB should not be allowed to change its ILA policy.
The ILA policy provides for payment of an ILA for day-to-day maintenance and housekeeping at the worker's residence in the following circumstances:
1. If a worker is severely injured, an ILA will be paid for as long as the compensable injury prevents day-to-day maintenance and housekeeping of the worker's residence. A severely injured worker is defined as a worker who requires temporary or permanent assistance with communication, mobility or self-care and includes a worker who has experienced the following:
a. Major limb amputations;
b. Significant brain injuries;
c. Severe multiple fractures;
d. Significant ongoing mental health difficulties;
e. the final stages of a terminal occupational illness;
f. paraplegia / quadriplegia;
g. severe respiratory condition;
h. significant sight impairment; or
i. wheelchair confinement.(emphasis in original)
The ILA policy was initially implemented by WCB Board Order 15/00. The relevant portions of the ILA policy have remained essentially the same since that date.2. If a worker is an injured worker (and not a severely injured worker), an ILA may be paid for a maximum of six months if:
a. the worker does not have any family resources to provide the service; and
b. medical evidence shows that it is unreasonable for the injured worker to perform day-to-day maintenance or housekeeping tasks.
An injured worker is defined as a worker who suffers an injury as a result of a compensable injury.
That said, it appears from information on the file and from the panel's awareness of previous Appeal Commission decisions that the provisions of the ILA policy dealing with the distinction between a severely injured worker and an injured worker were incorrectly interpreted and applied for a number of years by some staff at the WCB. This misinterpretation resulted in some injured workers receiving an ILA beyond the six month maximum period provided for in the ILA policy.
This misinterpretation of the ILA policy was addressed by the WCB in 2004.
In the worker's case, he was simply advised on October 6, 2005 that he had been in receipt of an ILA since 2001 and was no longer entitled to it.
Against this backdrop, the issue before us is whether the worker is currently entitled to receive an ILA, either as a severely injured worker, or on another basis.
Analysis
1. Entitlement to ILA as a severely injured worker
The worker submits that the definition of a severely injured worker in the ILA policy is quite broad. In applying this definition, he says that all of his conditions and restrictions should be considered, as well as his recent difficulties with swelling in his left knee.
The ILA policy definition of a severely injured worker is illustrative in nature. It does not constitute an exhaustive list of conditions which would be considered to be severe. Therefore, it is conceivable that a worker could be determined severely injured even though his/her particular condition(s) is not among the listed examples.
That said, the worker's condition(s) must still meet the intent of the ILA policy definition of a severely injured worker.
The ILA policy defines a severely injured worker as one who requires temporary or permanent assistance with communication, mobility or self-care. The examples provided illustrate that a severely injured worker is a worker who has a severely limiting physical or mental condition which prevents the worker from performing day-to-day housekeeping and maintenance tasks; it is more than a medical restriction.
In the case before us, the worker testified that he is able to cook, clean, do laundry, rake, and mow the lawn. It is not a problem for him to clean an inch of snow. He does however experience more difficultly clearing snow when there is a bigger snowfall, due to the repetitive lifting of more than twenty pounds per shovelful and the length of time exposed to the cold. On these occasions, the worker needs his son's assistance, for which he pays him.
The worker also testified that since September, 2005 he has had several episodes of swelling to his left knee. On some occasions, the knee is so swollen that he can only extend it twenty degrees; this can last up to three days.
On the basis of the worker's restrictions and reported activity level, we find that the worker is not a severely injured worker within the meaning of the ILA policy. He is essentially able to carry on the day-to-day tasks including snow clearing, within his restrictions. Though he does experience some difficulty with snow clearing on occasion, this difficulty, does not, in our view, render him a severely injured worker.
2. Entitlement to ILA on another basis
As we find that the worker is not severely injured, the only other basis on which the worker is potentially entitled to an ILA is as an injured worker. As an injured worker, the worker is potentially entitled to a maximum six month allowance.
The worker applied for and received an ILA in excess of the six month maximum. He is therefore no longer entitled to receive an ILA, regardless of his financial resources.
As a final note, we would like to reiterate that the WCB has not changed the ILA policy entitlement provisions since its inception in 2000. It is the same policy which has been applied to the worker since he first applied for an ILA in 2001. However, the WCB did misinterpret the provisions of the ILA policy to the worker's benefit. The WCB is not bound by errors in interpretation; it can therefore rectify them as it did in the present case.
Conclusion
In conclusion we find that based on the worker's current permanent restrictions and physical symptoms, he is not entitled to an ILA.
Panel Members
L. Martin, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
L. Martin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of April, 2006