The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission is bound by the Act and policies of the WCB’s Board of Directors.

The worker’s appeal deals with a request for reimbursement of clothing expenses. The date of the worker’s accident is July 14, 1987. The legislation in force on the date of the accident is generally applied when considering entitlement to benefits.

In July 1987 the Act provided that:

Treatment in addition to compensation

24(1) In addition to the other compensation provided by this Part, the board may provide for the injured worker such medical, surgical, and hospital treatment, transportation, nursing, attendant care, medicines, crutches, and apparatus, including artificial members, as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury…

Measures for rehabilitation

24(21) To aid in getting injured workers back to work and to assist in reducing or removing any handicap resulting from their injuries, the board may take such measures and make such expenditures from the accident fund as it deems necessary or expedient.

In addition subsection 24(2) deals with a clothing allowance for workers who wear a prosthetic or orthotic device and subsection 24(5) deals with a clothing allowance for clothes damaged as a result of an accident.

The WCB made Policy 44.120.30, Support for Daily Living, which is intended to coordinate the WCB’s approach to supporting workers’ participation in daily workplace and personal activities after an accident. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products. While it is based upon the current legislation, it is applicable to decisions made on or after October 1, 2000.

Worker’s Position

The worker attended the hearing with a friend who assisted her with her presentation. The worker answered questions asked by the panel. The worker’s treating psychologist attended the hearing and gave evidence in support of the worker’s appeal.

The psychologist advised that he had treated the worker in 2003 but did not see her again until 2007 when the WCB asked that he meet with the worker to assist her with adjustment issues arising from her significant weight loss. He said he served as an outlet for the worker. He advised that he was not counseling the worker on weight loss. He noted the medical evidence on file supported a causal relationship between the weight loss and the medication prescribed for the workplace injury. In his opinion the WCB was ignoring the medical information. He suggested that the replacement of the wardrobe should be treated in the same manner as the provision of a wheelchair for a worker.

The worker showed the panel pictures taken of her in November 2006 when she weighed 185 pounds and in August 2007 when she weighed 128 pounds. She advised that at the time of the workplace accident she weighed 142 pounds, that she is regaining weight and currently weighs 152 pounds. The worker said that as a result of the weight loss, her clothing no longer fit and she had to purchase replacement clothing. She advised that she has receipts for purchase of the replacement clothing.

The worker’s friend stated that due to the workplace injury the worker had many restrictions. He said that she took pride in her appearance and that the loss of her extensive wardrobe was a huge blow to her.

Analysis

The issue before the panel is whether further funds should be provided to the worker to offset the expense of new clothing. For this appeal to be successful the panel must determine that further payment for clothing is permitted in accordance with the Act or policies of the WCB and is warranted in the circumstances of this case.

The panel acknowledges that this is a unique case. The panel notes that many workers suffer weight change, both increases and decreases in weight, after a compensable injury and that the Act and WCB policies do not generally contemplate paying clothing costs for workers who experience weight changes. In this case the weight change was both sudden and dramatic. Within approximately four months the worker lost 57 pounds. The medical evidence establishes that the worker’s weight loss was caused by medications which were prescribed for her compensable injury.

The panel has considered the statutory provisions in effect at the time of the accident and finds that subsections 24(1), (2) and (3) of the Act are not sufficiently broad to permit the purchase of clothing in the circumstances of this case. However, the panel finds that subsection 24(21) is sufficiently broad to allow for the purchase of clothing where it will assist in reducing or removing the handicap resulting from the injury.

The panel notes that Policy 44.120.30 does not expressly provide for payment of clothing resulting from a change in weight as in this case. However, the policy provides that in each case the WCB shall examine all the evidence about the worker’s injury in order to determine whether the worker reasonably needs a particular support, service or product and provides that where unique circumstances arise, the worker may be eligible for additional or alternative support services or products. The panel considers that this policy provides additional authority to consider payment in this case.

The panel also finds that the policy provides useful guidance on the amount of such payment. Section H of the policy deals with clothing expenses in certain cases. While this provision is not applicable to this case, it provides for a maximum allowance of $835.00 per year for the purchase of clothing.

The panel finds that the worker had a demonstrated need for different sized clothing arising from her weight loss. The panel considers it reasonable to provide a clothing allowance in this case. The panel adopts the maximum clothing allowance of $835.00 per year (effective October 1, 2007) and finds that the worker should be provided this allowance on a one time only basis. As the worker has already received payment of $400.00 towards the purchase of clothing the remaining allowance is therefore reduced by this amount to $435.00.

The panel is unable to agree to the worker’s request for reimbursement of the actual costs incurred in purchasing new clothing. As noted above, the panel finds that the WCB should assist with the purchase of essential clothing but not replacement of all clothing. The panel finds that the maximum set by Policy 44.120.30 is a reasonable. The panel acknowledges that this sum does not result in complete recovery of costs incurred but finds that the WCB’s obligation does not extend to replacement of all clothing. The panel further notes that the worker has now returned to her pre-accident weight range and finds that there is no ongoing duty to fund further clothing purchases and provides this allowance on a one-time only basis. The panel also notes that clothing purchases are part of normal life and that the worker is in receipt of wage loss benefits from which she may choose to fund clothing purchases.

Finally, it was suggested that the provision of funds to replace the worker’s clothing belonged to the same category of expense as the provision of a wheelchair and should be permitted as a medical expense. However, the panel finds that the purchase of clothing was not required for medical reasons and notes that the psychologist’s evidence did not establish medical reasons for the purchase. Accordingly the panel finds that the provisions of the Act dealing with medical aid and related policies are not applicable.