Decision #104/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for an elbow injury that occurred on May 6, 1997, during the course of his employment as a services attendant.
In February 2002, the WCB loaned the worker a laptop computer to assist him with the performance of his job duties as he was unable to write for any extended period of time due to the effects of his compensable injury. In March 2006, the worker asked the WCB to repair or replace his laptop computer as it was not working properly. Both primary adjudication and Review Office agreed that the laptop computer was provided to the worker on a one time basis and that the WCB was not responsible to repair or replace the laptop. The worker disagreed and filed with the Appeal Commission an application to appeal and a hearing was held on July 9, 2008, to consider the matter.
Issue
Whether or not there is entitlement to repair or replacement of a laptop computer.Decision
That there is no entitlement to repair or replacement of a laptop computer.Decision: Unanimous
Background
The worker sustained an injury to his right elbow in a work related accident on May 6, 1997. The claim for compensation was accepted based on the diagnosis of a focal ulnar neuropathy and various types of benefits and services were paid to the worker.
In a memorandum to file dated November 22, 2001, a WCB case manager documented that the worker’s position required him to write out trip reports by hand. The worker indicated that he was unable to write the reports due to residual effects of his compensable injury. The case manager concluded that the purchase of a laptop computer would be a logical solution to the worker’s dilemma.
On February 5, 2002, the WCB loaned the worker a laptop computer and portable printer. The loan agreement which was signed by the worker stated, in part, “the equipment is the property of the Workers Compensation Board of Manitoba and must be returned when moving out of the province or when I no longer require the use of the equipment…”.
On March 21, 2006, the worker notified the WCB that his laptop computer was starting to “blink out” and he asked the WCB to repair or replace it.
On March 24, 2006, a WCB case manager advised the worker that the WCB was unable to replace or repair the laptop computer. The case manager noted that the worker was previously provided with a laptop to assist with residual symptoms resulting from his compensable injury. After reviewing all file information and after consulting with a WCB healthcare consultant, there were no restrictions required as a result of his compensable injury. She stated there were no provisions in The Workers Compensation Act (the “Act”) that would allow replacement and or repair of the laptop. The case manager opined that the laptop was not required to cure or provide relief from the compensable injury, given no restrictions were required as a direct result of the compensable injury.
On January 23, 2007, the worker spoke with a sector services manager. He stated that he had ongoing problems and that the laptop is what allowed him to keep working. He already purchased a new one for $1100.00 but indicated that the repair bill would have been just under $700.00.
In a letter dated January 31, 2007, the sector services manager upheld the case manager’s decision dated March 24, 2005. The sector services manager noted that the worker had been able to return to his duties without restrictions. She referred to a July 2001 Functional Capacity Evaluation which indicated that the worker’s functional abilities met the demands of his current job position. She noted that because of the worker’s elbow tenderness, the FCE physiotherapist recommended that the worker be allowed to use a computer to complete his reports. It was felt that the worker was provided with a laptop computer to assist in making the transition to return to his duties, on a one time basis. There were no provisions for ongoing costs related to this work enhancement. As the worker had no compensable restrictions that precluded him from working this job, the WCB was unable to provide coverage of the costs of this enhancement tool. On June 14, 2007, the worker appealed the decision to Review Office.
On August 1, 2007, Review Office determined that there was no entitlement to repair or replacement of a laptop computer. It stated that the worker’s employer has indicated that the reports can be completed by hand or by computer at the discretion of the employee. It therefore did not find merit in the worker’s argument that it was required for his employment. Given that the FCE reconfirmed the worker’s ability to meet the demands of his job and the need for a computer was due to elbow tenderness rather than a physical restriction, it determined that there was no entitlement to repair or replacement of the laptop computer. On January 10, 2008, the worker appealed this decision to the Appeal Commission and a hearing was arranged.
Reasons
Worker’s Position
In his appeal, the worker submitted that when he was first given the laptop, he had to acknowledge that the laptop was the property of the WCB. At no time was he informed that it was a one-time issue to get him back in the workforce. It was also submitted that his medical condition had not changed since his surgery (transposition of the ulnar nerve) and that he required a laptop to perform his duties with his employer. Without the laptop, his hand goes numb when handwriting reports. This was a direct result of the work injury and the laptop was an essential requirement to perform his job.
At the hearing, the worker was self represented. He explained to the panel the requirements of his position and why a laptop was required. During the course of each four and a half day shift, he was required to prepare a report. The report was typically eight pages in length, but sometimes was up to 15-20 pages long. On an average work day, the worker would spend three to three and one half hours completing his report. The worker stressed that he used the laptop exclusively for work-related purposes. If required to handwrite reports, the worker’s evidence was that after about five minutes, he would start to get tingling in his hand. After ten or fifteen minutes, he would have to stop and rub his hand for a while before he could continue to start writing again. It was acknowledged that he was not in pain, but there was certainly discomfort. Overall, it was submitted that the worker got injured at work and as a result, he has a permanent impairment in his right arm. He should not have to suffer or endure any kind of discomfort which could be easily rectified by the purchase (or repair) of a computer to replace the one which was previously provided to him to relieve the exact same condition.
Applicable Legislation
Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides
Academic, vocational and 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.
WCB Policy 43.00, Vocational Rehabilitation (the “Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The Policy states that: “Vocational rehabilitation is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness.” It also provides: “While discretionary, vocational rehabilitation should be consistently applied to all eligible workers.” Under the heading Allowances, the Policy provides:
Tools and Equipment – The cost of special equipment, tools or clothing where this is required to support a return to work will be paid by the WCB. These tools and equipment remain the assets of the WCB for the life of their usefulness. Maintenance of the tools and equipment is the responsibility of the WCB until the plan ends. The WCB may decline responsibility for maintenance, if it is needed, due to the fault of the worker.
Analysis
The worker has requested that the WCB accept responsibility for the purchase of a new laptop computer to replace the one which was previously provided to him by the WCB. The Appeal Commission and its panels are bound to follow the policies put in place by the WCB Board of Directors. The Policy states that tools and equipment will be paid for by the WCB where required to support a return to work. The Policy also states that maintenance of the tools and equipment is the responsibility of the WCB until the plan ends.
In the present case, the worker successfully returned to his pre-accident employment approximately six years ago and he is no longer in receipt of vocational rehabilitation assistance from the WCB. His vocational rehabilitation plan is complete. Although the worker’s medical condition has not changed since his return to work in 2002 and he continues to experience discomfort and numbness when handwriting for more than five minutes at a time, the Policy only provides for tools and equipment to assist a reintegration into employment. The Policy clearly states that equipment will be purchased to “support a return to work” and the WCB is only responsible “until the plan ends”. The Policy does not allow for the purchase of equipment on an ongoing basis. Once the worker is re-established in the workplace, the responsibility ends. The panel is bound to follow the Policy and we therefore have no discretion to grant the worker’s request.
The panel also notes that there are no medical restrictions in place with respect to the worker, specifically, with respect to handwriting. At the hearing, the worker candidly admitted that the use of a computer is being sought to avoid discomfort caused by the residual effects of his workplace injury. It is not alleged that the worker is unable to perform his duties without the aid of a computer.
For the reasons stated, the panel therefore finds that there is no entitlement to repair or replacement of a laptop computer. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerB. Simoneau, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 12th day of August, 2008