The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Act, regulations and policies of the Board of Directors.

Subsection 27(20) of the Act provides that the WCB with the discretion to make expenditures for rehabilitative and other assistance that an injured worker may require. It states:

Academic, vocational, rehabilitative assistance

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.

In accordance with this subsection of the Act, the Board of Directors made WCB Policy No. 44.120.30, Support of Daily Living. The purpose of this policy is to assist, and allow, workers to be as independent as possible. With respect to home modifications, Section F of the policy notes that specific modifications to the worker’s residence are often required to allow the worker to perform basic tasks. It provides that the WCB may pay for home modifications to the worker’s primary residence depending on the following factors:

• Demonstrated need for the specific modification based on the worker’s injury;
• The condition of the residence;
• Length of disability expected;
• Whether the modifications will provide improved access and mobility for the worker;
• Be cost effective or suitable, in the WCB’s view, for the worker;
• Approved by the WCB in advance.

Worker’s Position

The worker attended the hearing with her husband and a worker adviser who made a presentation on her behalf. The worker and her husband answered questions posed by the panel.

The worker’s representative reviewed the circumstances surrounding the worker and husband’s acquisition of the property. He noted that the purchase was conditional upon a satisfactory inspection by WCB and that a WCB rehabilitation specialist provided a favourable evaluation. The representative advised that the couple did not know that aspects of the home they were looking forward to enjoying would be removed to accommodate modifications. He said that they did not anticipate losing amenities, the jetted tub and basement fireplace, which they paid for.

He noted that while the jetted tub and basement fireplace were removed to make necessary modifications, the WCB did not complete the job by reinstalling the items. He stated that “We accept that many of the modifications were approved to improve access and mobility for the worker, but believe that, in order to finish the job, all other related disruptions need to be addressed as well.”

Regarding the reinstallation of the jetted tub, the representative referred to the opinions of the two occupational therapist who supported the reinstallation of a jetted tub for the worker’s use. He submitted that while a wheel-in shower does meet the requirements of the worker, an accessible tub for bathing should also be considered a basic need.

The worker’s representative advised that the worker paid to have a jetted tub installed in the bathroom. The husband advised that a larger tub with appropriate faucets was installed. The tub is accessible to the worker by a Hoyer lift and bath chair.

The worker’s representative submitted that the modifications were not approved strictly on medical necessity. He stated that the reinstallation of the items would contribute to the worker and husband’s lifestyle and refusing to reinstall the items is inconsistent with the spirit of the Act, which attempts to compensate injured workers and their families for losses incurred as a result of their injuries.

The worker’s representative also submitted that the refusal to reinstall the items resulted in a loss in value of the worker’s investment which loss should be compensated.

In answer to a question by the panel, the representative acknowledged that they had no information regarding the impact of the modifications and the removal of the items on the value of the property.

Employer’s Position

The employer was represented by an advocate and its WCB administrator.

The advocate advised that the employer agrees with the WCB’s position that the WCB should not accept responsibility for the costs of reinstalling the jetted tub and fireplace. She noted that the decision was approved by a committee of experienced WCB staff and was consistent with other approvals. The employer advocate did not see the WCB’s decision as being inconsistent with the spirit of the Act. She submitted that the Act does not speak to quality of life issues.

The employer’s advocate disputed whether the removal of the jetted tub and fireplace had an impact on the value of the property. She stated that in any case, maintaining the value of the house is not a factor under the policy.

Regarding the jetted tub, the employer advocate submitted that it was not a necessity under the policy.

Analysis

The panel was asked to determine whether the WCB should accept responsibility for the costs of reinstalling a jetted tub and fireplace in the worker’s primary residence. The panel finds that the WCB is responsible for the costs of reinstalling a jetted tub but is not responsible for the costs of reinstalling a fireplace.

In determining this issue, the panel considered and applied WCB Policy 44.120.30. This policy provides that the WCB may pay for home modifications where there is a demonstrated need for the specific modification based upon the worker’s injury.

The panel finds that there is demonstrated need for a jetted tub and that the WCB is responsible for such costs. The panel relies upon the recommendation of an occupational therapist noted in a Home Visit Report from August 2006. The occupational therapist wrote “A larger Jacuzzi style (tub) is recommended to accommodate any special seating/bath chair that may be required.”