The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (“the Act”) and by policies made by the Board of Directors of the WCB.

Subsection 27(20) provides:

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 subsection 27(20), 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. Section D of this policy deals with assistance for independent living. It provides:

D. Independent Living

Purpose:

The WCB recognizes that a worker may face an increased safety risk if day-to-day housekeeping or maintenance of the worker's residence (e.g., snow removal, lawn care, general home repair) is not kept up. In many cases, it may be impossible to perform such tasks after the accident. Although family members often assist workers in performing these tasks, it is not always possible for family resources to provide extended periods of additional maintenance or housekeeping services.

Policy:

1. Type of Services

Includes an allowance for day-to-day maintenance and housekeeping at the worker's residence (e.g., snow removal, lawn care, general home repair, housekeeping, laundry, etc.).

2. Severely Injured Workers

The WCB will provide financial support for independent living to severely injured workers that reflects the reasonable level of need for the worker.

For severely injured workers, the WCB will provide support for independent living for as long as the compensable injury prevents day-to-day maintenance and housekeeping of the worker's residence.

3. Injured Workers

The WCB may provide injured workers support for independent living for a maximum of six months and at a level established by the WCB if the following conditions are met:

· The worker does not have any family resources to provide the service; and,

· Medical evidence shows that it is unreasonable for the injured worker to perform day-to-day maintenance or housekeeping tasks.

4. Arrangements

Workers are expected to make their own arrangements to obtain the services that will enhance independent living; however, in the event that private arrangements can not be made, the WCB may contact bonded service providers.

Worker’s Position

The worker provided a written submission. He stated that the decision of the WCB Review Office should be overturned. The worker indicated that he was seeking an ILA to pay for labour costs associated with repairs to the roof on his residence. He advised that he had received an ILA of $50.00 per month for six months but that the ILA was cancelled by the Review Office decision. He advised that he had asked for $1,485.00.

Regarding the repair to the roof, the worker advised that this was home maintenance and not a renovation. He stated that no one at his home could perform the job and that he could not perform the job because of the restrictions placed on him arising from his workplace injury. He noted his current restrictions and advised that when he does perform jobs around the home he has to deal with pain in his ankles and legs. He advised that before he was injured he did many jobs around the house. He asked for assistance with this job as it would be dangerous for him to do roof repairs.

Analysis

The issue before the panel is whether the worker is entitled to an ILA. For this appeal to be successful, the panel must find that the worker is entitled to an ILA in accordance with the applicable WCB policy. The panel found that the worker was not entitled to receive an ILA.

Under the policy, financial support for independent living is provided to workers who meet the definition of “severely injured worker” or “injured worker”. The definition section of the policy provides examples of workers who are considered “severely injured”. The panel has considered the worker’s injury and current functionality and finds that he is not a severely injured worker for the purposes of the policy, accordingly he is not entitled to receive a long term ILA. The panel also notes that the worker is able to perform day-to-day maintenance of his residence, and thus does not qualify for the short term ILA potentially available to “injured workers” under the policy.