Decision #169/06 - Type: Workers Compensation

Preamble

The worker suffered a compensable injury in June 1988. He has appealed issues related to an attendant’s allowance and ambulance costs to the Appeal Commission. A review was held on June 27, 2006 following which the appeal panel sought additional information from the WCB occupational therapist. The worker provided additional comments upon receipt of this information and a second caucus took place on October 3, 2006.

Issue

Issue 1: Whether or not responsibility should be accepted for ambulance costs incurred on September 12, 2002;

Issue 2: Whether or not the worker is entitled to an attendant’s allowance prior to October 1, 2000; and

Issue 3: Whether or not the attendant’s allowance should remain at 45 minutes daily.

Decision

Issue 1: That responsibility should not be accepted for ambulance costs incurred on September 12, 2002;

Issue 2: That the worker is not entitled to an attendant’s allowance prior to October 1, 2000; and

Issue 3: That the attendant’s allowance should remain at 45 minutes daily.

Decision: Unanimous

Background

Reasons

On June 6, 1988 the worker suffered an injury to the ulnar nerve in his right forearm and right shoulder. Despite medical treatment, the worker was left with a permanent disability in his right arm which causes him pain and functional difficulties with eating, dressing, grooming and more generally with day to day living.

The worker has filed an appeal on three issues related to an incident of severe pain requiring an ambulance, and to his entitlement to an attendant’s allowance for assistance in his daily living activities.

Issue 1: Whether or not responsibility should be accepted for ambulance costs incurred on September 12, 2002

Background: On September 12, 2002, the worker experienced excruciating right elbow pain that caused him to pass out. An ambulance was called and the worker was taken to a hospital emergency facility.

The cause of the worker’s right elbow pain was never definitively clarified. At first it was thought that the worker had gout because aspirated fluid from the elbow suggested uric acid crystals. However, subsequent blood work did not confirm this diagnosis. It was therefore suggested by the worker’s treating physician that the worker’s right elbow pain could have been caused by either the nerve damage from his compensable injury or by his more generalized arthritic condition.

The worker’s arthritic condition was commented on by a Medical Review Panel (“MRP”) in 1994. At that time the MRP noted that the worker had pre-existing and progressive degenerative disc disease of the cervical spine which resulted in progressive radiculopathy, causing impairment in both arms.

An MRI taken on December 9, 2004 confirmed the degenerative disc disease and also revealed osteoarthritis in the elbows:

“There is a left 5 mm dorsal olecranon spur. On both sides all joint compartments are narrowed with associated osteophytes, the changes appearing more marked on the right. Anterior to the right elbow there is a 2.5 cm calcification, possibly myositis ossificans. Anterior to the left elbow there is a 1.5 c, corticated calcification. In soft tissues at both elbows medially and laterally there are several calcifications in the 2 mm to 8 mm diameter size range.

Impression: Bilateral osteoarthritis with loose bodies and possible myositis ossificans anteriorly on the right. The osteoarthritis appears more severe on the right.”

Worker’s Position: The worker says that the WCB should pay for his September 12, 2002 ambulance costs because he had an acute episode of nerve damage pain in his right elbow which caused him to lose consciousness. He says that he has had right elbow pain since his workplace accident though it has never become as acutely inflamed as it did on September 12, 2002.

Analysis: In reviewing the medical evidence on file, we find that there is insufficient evidence to show that the worker’s right elbow pain was more likely than not caused by his compensable injury.

The 2004 MRI shows that the worker suffers from relatively severe osteoarthritis in his right elbow. Though the worker also suffers from nerve damage to the ulnar nerve the pain the worker experienced on September 12, 2002 was not similar to the pain he usually experienced from the ulnar nerve damage. This was a very severe pain that caused the worker to lose consciousness. As stated by the worker’s physician in an April 27, 2003 report, gouty arthritis or similar acute inflammation (which would include osteoarthritis) can cause very severe pain.

For these reasons we find that responsibility should not be accepted for ambulance costs incurred on September 12, 2002.

Issue 2 and 3: Whether or not the worker is entitled to an attendant’s allowance prior to October 1, 2000; and Whether or not the attendant’s allowance should remain at 45 minutes daily.

Background: Due to the worker’s injury and his resultant disability, his functional capabilities have been assessed to assist in the determination of his entitlement to an attendant’s allowance. These assessments are as follows:

  • On December 8, 1998 a home visit was done by the WCB. At that time it was noted that the worker was not totally independent in his daily living but was nonetheless able to do much of it. Functional difficulties included minimal use of his right thumb and index finger, inability to get out of the bath without a guard rail, cutting food, doing buttons and putting on socks and shoes. It was noted that the worker was not interested in increasing his function as he and his wife had developed a routine whereby she provided him with assistance;

  • The home visit was completed on January 11, 1999. The WCB occupational therapist thought that the worker could be more independent and arranged for an independent assessment for an attendant’s allowance;

  • The independent assessment was done on February 4, 1999 which revealed that the worker had the following functional difficulties:

  • Dressing: though he was independent with most dressing, he required his spouses assistance with buttons, ties, shoelaces and winter clothing;
  • Grooming: the worker was able to do most activities with his left hand (even though he was right hand dominant) but felt he was awkward in these tasks. He was unable to cut his nails;
  • Bathing: the worker required his wife’s assistance in washing his hair and his back;
  • Feeding: the worker is able to feed himself but needs his wife to cut his food and butter his bread.

Based on the assessment the occupational therapist recommended that the worker could become more independent if he used equipment such as an electric shaver, cuff and collar button extender, button hook, weighted universal holder, rocker knife, long scrub sponge, dycem pad, clip-on food guard, and elastic shoe laces or ortholaces.

  • Following this assessment, the WCB purchased several pieces of the recommended equipment. It was determined that this equipment would allow the worker to become more independent. As such there was no clear area where the worker would be unable to complete a task and require the services of a caregiver. A letter denying an attendant’s allowance was therefore sent to the worker on April 9, 1999;
  • Then, in May 2001 the worker requested an attendance allowance again because he needed it to help keep his apartment clean and do the laundry. He wanted some money that he could pay to his adult children that helped in these tasks. The provision of an attendance allowance was therefore once again examined on September 6, 2001, when a WCB rehabilitation specialist assessed the worker. The assessment was consistent with the February 1999 assessment. The occupational therapist calculated the amount of time it would take to assist with the daily living activities (which do not include general housework) at 45 minutes per day, or 5.25 hours per week, or 22.8 hours per month. As WCB policy 44.120.30 allowed for payment of $11.00 per hour when the caregiver is a family member, the occupational therapist calculated the monthly attendant’s allowance at $250.00. It was also made retroactive to May 2001. The monthly allowance was confirmed in writing on October 24, 2001.
  • On January 23, 2002, the worker was informed that the $11.00 used to calculate his attendant’s allowance was incorrect and that it should have been $8.16. His allowance was therefore reduced accordingly, going forward. (This hourly rate is reviewed on an annual basis. We note that the last review was in October 2006 and that the rate was increased to $9.26 per hour);
  • On January 20, 2005 the WCB occupational therapist reviewed the most recent medical information and correspondence and decided that the worker’s allowance should stay the same.

The attendant allowance issue was again reviewed in September and October 2005. It was determined that there was no change in the worker’s functional status and therefore no need to change to attendance allowance. However, it was determined that the worker was entitled to the attendant allowance retroactive to October 1, 2000 as this is when WCB policy would have entitled him to receive it. It was felt that the allowance could not have been implemented earlier as the prior policy did not cover his functional difficulties.

Worker’s Position: The worker says that the amount of time allocated for caregiver tasks is insufficient. His right arm is getting worse, he also has knee problems for another compensable injury and his wife is unable to assist him as much. He has therefore become more dependent on assistance from his children. He also says that the attendant’s allowance should be paid retroactively to 1988.

Analysis: In reviewing the WCB policies on attendant’s allowances and the functional assessments done on the worker, we are unable to find that the worker is entitled to a greater allowance or to an allowance prior to October 1, 2000.

WCB Policy

Prior to October 1, 2000, entitlement to an attendant’s allowance was determined on the basis of policy 44.120.30.01. That policy only allowed for an attendant’s allowance if the worker had a serious compensable injury or disability. “Serious” was defined as follows:

1. Blind person, fully trained (requires assistance only occasionally), Amputees (requires limited help at specific times - once or twice daily, e.g., assistance in putting on or taking off appliances or prosthesis or clothing), Double leg amputee (Confined to wheelchair but no other problem), Head Injury (Supervision - as for a child - minimal actual service), Abnormal needs for cleaning or laundry as in incontinence;

2. Blind person who, due to other disability, requires more assistance due to limited adjustment to blindness, e.g., deafness, amputation, etc., Amputees (Double arm amputee) - one or both above elbow (requires help with prosthesis of which there is limited use), Double leg amputee - confined to wheelchair with added difficulties due to level of amputation, age or other disabilities, Head Injury (Supervision but with added problems such as incontinence), Spinal Cord Injury (Paraplegia or hemiplegia - confined to wheelchair but requires minimal assistance - some wear and tear on clothing), Quadriplegia - partial - able to walk with braces and canes or crutches (Due to upper limb disability and/or spasticity of lower limbs requires assistance to dress, bath, and in toilet functions, enemas, etc.);

3. Head Injury (Requires custodial care - needs to be controlled (e.g., wanders out of house ill clad, gets lost, cannot be left with children, lack of temper control. May also have incontinence.), Spinal Cord Injury (Paraplegia, quadriplegia, or hemiplegia plus requires assistance in and out of wheelchair, bed or bath, on and off toilet and with enemas, catheters, etc.);

4. Amputees (High double arm amputee - fully mobile but no use of either hand or prosthesis; Triple amputees. - both legs and one arm);

5. Spinal Cord Injury (Confined to wheelchair with limited use of arms as in quadriplegia. Requires assistance with all functions of daily living. Must be lifted in and out of bed, chair, and bath. Unable to care for self re: enemas or bladder control apparatus);

6. Head Injury (Requires complete custodial care - 24 hour a day assistance in toilet habits, bathing, dressing and feeding), Spinal Cord Injury (must be dressed, given bladder and bowel care, lifted in and out of bed, wheelchair, bath and on and off toilet. Can, to limited degree, move about house in wheelchair and feed self with help of appliances);

7. Completely bedridden, requiring complete nursing care 24 hours a day, including feeding, bathing, turning, toilet care, etc.; Spinal Cord Injury (Able to be up in chair for short periods but unable to feed self, move about house. Must be lifted in and out of bed and chair. Requires complete care).”

WCB policy 44.120.30.01 was modified effective October 1, 2000 which became policy 44.120.30. WCB policy 44.120.30 provides an attendant allowance to both severely injured and injured workers. A severely injured worker includes persons with major limb amputations, significant brain injuries, severe multiple fractures, significant ongoing mental health difficulties, final stages of a terminal occupational illness, paraplega/quadriplegia, severe respiratory condition, significant sight impairment or wheelchair confinement. An injured worker is one who suffers an injury as a result of a workplace injury.

The amount of the allowance paid under this policy is determined on the amount of time required to provide attendant assistance. Attendant assistance is defined as personal care services such as hygiene, safety and securing, grooming, attendant/proctor care, feeding, food preparation, transfer assistance, toilet, medical treatments, provision of medical and non-medical equipment and professional care (e.g. nursing and healthcare aid services). It does not include housekeeping or day-to-day maintenance. These services are covered by an independent living allowance.

For family members, the fee paid for attendant assistance has been set as follows:

  • $8.00/hour effective October 1, 2000;
  • $8.16/hour effective October 1, 2001;
  • $8.31/hour effective October 1, 2002;
  • $8.41/hour effective October 1, 2003;
  • $8.70/hour effective October 1, 2004;
  • $9.03/hour effective October 1, 2005;
  • $9.26/hour effective October 1, 2006.

Application of WCB policy to the worker’s situation

In reviewing WCB policy, we find that the worker did not have a serious injury or disability as defined under WCB policy 44.120.30.01 that was in effect before October 1, 2000. For these reasons, we find that he is not entitled to an attendant’s allowance under this policy before October 1, 2000. We do however find that he is entitled to an attendant’s allowance under WCB policy 44.120.30, which came into effect on October 1, 2000, as an injured worker.

With respect to the amount of that allowance, we find that the 45 minutes granted to the worker is, on a balance of probabilities, sufficient. A review of the functional capacity assessments suggest that the worker could be more independent in his personal care if he chose to do so but that he remains largely dependent on his wife for the tasks he has difficulty doing. That said, the tasks that the worker requires assistance with are quite minimal and could be done within 45 minutes. We therefore find, on a balance of probabilities that the attendant’s allowance should remain at 45 minutes daily.

We note that the worker feels that the WCB should honour the initial amount of $250.00 that was calculated on the basis of $11.00 per hour. This calculation was an error and not based on the policy amount. An administrative error does not bind the WCB going forward.

Accordingly, the worker’s appeal is denied.

To be clear, this finding does not include other potential entitlement to an attendant’s allowance based on the worker’s knee condition.

Panel Members

L. Martin, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 1st day of November, 2006

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