The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on April 25, 2006, at the worker's request.

Issue

Issue 1: Whether or not the worker is entitled to an ongoing independent living allowance;

Issue 2: Whether or not the worker's permanent partial disability award was correctly made effective as of the date of his first surgery;

Issue 3: Whether or not the worker's permanent partial disability award should be deducted from his Special Additional Compensation benefits;

Issue 4: Whether or not the worker's pre-accident wages were correctly calculated; and

Issue 5: Whether or not the worker should be paid Special Additional Compensation benefits.

Decision

Issue 1: That the worker is not entitled to an ongoing independent living allowance;

Issue 2: That the worker's permanent partial disability award was correctly made effective as of the date of his first surgery;

Issue 3: That the worker's permanent partial disability award should be deducted from his Special Additional Compensation benefits;

Issue 4: That the matter be referred to the WCB as this issue has not been considered by the WCB;

Issue 5: That the worker should be paid Special Additional Compensation benefits.

Decision: Unanimous

Background

Reasons

Introduction

On August 31, 1983, the worker suffered a compensable injury to his back. He has undergone three surgeries and has essentially not worked since the date of his compensable injury.

The worker has appealed five issues which were denied by Review Office decisions dated October 6, 2005 and February 23, 2006.

Issue 1: Whether or not the worker is entitled to an ongoing independent living allowance

On November 5, 2001 the worker called the WCB advising that he felt his back condition was getting worse and was concerned about being able to shovel snow if there was a big storm.

On January 23, 2002 a rehabilitation specialist visited the worker at home to assess whether he would qualify for an independent living allowance (hereafter "ILA") under WCB Policy 44.120.30 (hereafter the "ILA Policy"). A February 20, 2002 memorandum records this visit.

"[The worker] has the following permanent restrictions:

• no lifting weights in excess of 10 lbs.
• no ladder climbing.
• No working at heights.
• No prolonged standing - flexibility in tasks that would allow postural changes as needed…

[The worker] would be considered an injured worker under the policy…"

The worker received an ILA up until March 25, 2004 when the WCB advised the worker that he was no longer entitled to it. The Review Office confirmed this denial on October 6, 2005.

The worker takes the position that he should continue to be entitled to receive an ILA as he is a severely injured worker. He relies on reports from his orthopaedic surgeon stating he was a "back cripple" and was "chronically disabled". He also relies on a letter from the WCB which referred to him as a "Worker with a serious injury".

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.

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.

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 restriction.

In the case before us, the February 20, 2002 memorandum indicates that the worker is independent in his daily activities. He is able to shower or bathe with the use of aides, dress and occasionally do some light housework. The latest medical reports on file from 2003 do not indicate much if any change in the worker's medical condition though there is some reported worsening of his back and right leg symptoms. An August 5, 2003 report notes that he is able to walk one and one-half blocks before he experiences increasing right leg pain. We also note that the worker utilizes a power-operated scooter. The evidence on file indicates that the power-operated scooter was obtained by the worker because of his own perceived disability, rather than as a result of a medical requirement. The WCB has refused financial responsibility for this scooter. Further, the worker's treating orthopaedic surgeon advised him in November, 2001 to minimize its use to try and keep up some muscle tone.

On the basis of this evidence, 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 within his restrictions. Though he does experience physical limitations, these do not, in our view, render him a severely injured worker. We also note that the worker has already received the maximum of six months of ILA that is allowed for injured workers under the policy.

Conclusion: On the basis of the foregoing, the worker is not entitled to an ongoing ILA. His appeal is therefore denied on this issue.

Issue 2: Whether or not the worker's permanent partial disability award was correctly made effective as of the date of his first surgery


The worker underwent the following surgical procedures relative to his compensable back claim:

• December 7, 1983 - spinal fusion of L4, L5 and S1;
• August 8, 1984 - exploration of previous spinal fusion and revision of the L4-5 spinal fusion with added bone.
• March 26, 1986 - exploration lumbar spinal fusion and removal of dystrophic calcification and scar tissue upper portion fusion and part of spinous process L-3.

On June 24, 1985, the worker was assessed by a WCB medical officer who found that the worker was entitled to a 15% permanent partial disability (hereafter "PPD") award retroactive to the date of his initial or first surgery (i.e. December 7, 1983). The worker's back condition was re-evaluated on August 24, 1988 and his PPD award was increased to 22.5%.

The worker takes the position that his PPD award should have been deemed effective the date of his original accident, rather than the date of his first surgery.

On February 23, 2006, Review Office determined that the worker's PPD award was correctly made effective the date of his first surgery.

WCB Policy 44.90.10.02 - Permanent Impairment Rating Schedule - provides that evaluation of permanent impairment is made when treatment has been completed, or when, in the opinion of the Board's physicians, the medical condition has stabilized and no further improvement is expected. The timing of the evaluation, therefore, varies according to the individual's circumstances.

A PPD award is destined to compensate a worker for a permanent condition which has plateaued. Though the worker's condition had not yet plateaued on December 7, 1983, as evidenced by his subsequent surgeries, he was still awarded a PPD as of this date. The award is therefore to the worker's benefit.

Conclusion: On the basis of the foregoing, we find that the worker's PPD award was correctly made effective as of the date of his first surgery. The worker's appeal on this issue is therefore denied.

Issue 3: Whether or not the worker's PPD award should be deducted from his Special Additional Compensation benefits

In 1993, the worker was determined to be "unemployable" because of his physical restrictions and minimal transferable skills. He therefore began to receive Special Additional Compensation (hereafter "SAC benefits") through the WCB's vocational rehabilitation branch. The amount of payment of the SAC benefits was reduced by the amount of the worker's PPD award.

The worker takes the position that the WCB should not have deduced the amount of his PPD award from his monthly SAC benefits. He says that a PPD award should be paid on top of his monthly benefit in recognition of his serious compensable injury.

On February 23, 2006, Review Office confirmed that the worker's PPD award should have been deducted from his SAC benefits.

Section 32(1.1) of The Worker's Compensation Act, Cap. W200, which is the Act applicable to the worker's claim, provides as follows:

"Special additional compensation
Where the board is satisfied that an injury in respect of which it has allowed compensation under subsection (1) has occasioned a loss in earning capacity that is proportionately greater than the physical loss on the basis of which the compensation is allowed, it may

(a) during a period when the worker is taking rehabilitation training satisfactory to the board; or

(b) if the board is satisfied that rehabilitation training is not indicated; or

(c) if the board is satisfied that, after a fair and honest effort by the workman, rehabilitation has not produced an earning capacity that is reasonably equivalent to his earning capacity before the injury reduced by the physical loss on the basis of which the compensation is allowed;

increase the compensation allowed under subsection (1) in such amount as it considers fair and just, but the total compensation shall not exceed 75% of the average earnings of the workman." [Emphasis added]

The compensation referred to in Section 32(1) is the PPD award which is meant to compensate the worker for his loss of earnings:

"Compensation for permanent partial disability
Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensation for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings."

These provisions are clear that the SAC benefits are to be added to the PPD but this total amount cannot exceed 75% of the worker's average earnings.

Conclusion: On the basis of the foregoing, we find that the PPD award should be deducted from the worker's SAC benefits to the extent that it exceeds 75% of the worker's average earnings. The worker's appeal on this issue is therefore denied.

Issue 4: Whether or not the worker's pre-accident wages were correctly calculated

The worker takes the position that his pre-accident wages were incorrectly calculated. The pre-accident wage used to calculate his SAC rate was a labourer rate whereas he was working as a second year apprentice at the time of the workplace injury. Further, given his projected career, he would have eventually been paid a full journeyperson's rate of pay.

On February 23, 2006, Review Office found that the worker's permanent pre-accident wages were correctly calculated as the worker is currently "receiving the maximum compensation allowable for an injury occurring in the year 1983".

We find that the Review Office did not deal with whether the worker's pre-accident wages were correctly calculated. While the worker may currently be receiving the maximum compensation allowable for an injury occurring in 1983, this is not the issue advanced by the worker. The worker's issue is whether his pre-accident wages were correctly calculated. While the determination of this issue may not have any current implications, it may have retroactive implications.

As the worker's issue of whether his pre-accident wages were correctly calculated has not yet been fully determined by the WCB, we do not have jurisdiction to deal with this matter.

Conclusion: On the basis of the foregoing, the worker's issue of whether his pre-accident wages were correctly calculated shall be referred back to the WCB for determination.

Issue 5: Whether or not the worker should be paid Special Additional Compensation benefits

The worker is of the view that he is totally disabled. He says that he should have remained on regular claims benefits and should never have been transferred to vocational rehabilitation services through which he has been paid SAC benefits since 1993.

On February 23, 2006, it was the Review Office's decision that the classification of the worker's benefits should not be changed from vocational rehabilitation to claims.

As referenced above, section 32(1.1) provides that SAC benefits may be paid if the WCB is satisfied that rehabilitation training is not indicated. The payment of SAC benefits is a discretionary payment.

Despite the worker's assertion to the contrary, the file evidence indicates that the worker is not totally disabled. Rather, he suffers from a back condition which causes him certain physical limitations. The worker met with a rehabilitation consultant in 1993 for the purpose of determining the worker's employability. An August 4, 1993 memorandum records the visit and recommends that SAC benefits be implemented for the following reasons:

• The worker believed himself to be totally disabled from any occupation;
• The worker's wife also held this belief;
• The worker's orthopaedic surgeon opined that the worker was unemployable;
• The worker's physical restrictions dictated sedentary employment;
• The worker had been employed as a painter since 1971. Given his physical restrictions, the worker was found to lack transferable skills and very limited marketable skills;
• The worker had been out of the workforce for ten years;
• The worker exhibited very limited potential in successfully completing an academic upgrading program;
• The worker demonstrated a lack of interest in pursuing additional training to enhance his employability;
• The worker presented as unable to maintain employment outside of his home due to reported pain level exacerbation;
• The home-based employment opportunities would require the worker to produce a substantial amount of product to earn minimum wage. He did not present as being able to do so.

The rehabilitation consultant thought that even with intense vocational rehabilitation services it was unlikely that the worker would ever earn more than the CPP benefits he was receiving. Based on all of these factors, she thought the worker was unemployable.

The worker was therefore granted SAC benefits as of August 1, 1993.

The decision to grant SAC benefits as opposed to keeping a worker on regular claims benefits was a discretionary decision. The practice at that time was however that SAC benefits were granted once a worker was considered unemployable.

In reviewing the file, we find that the award of SAC benefits was reasonable.

Conclusion: On the basis of the foregoing, we find that the worker should be paid SAC benefits. The worker's appeal on this issue is therefore denied.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of June, 2006