The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is presently appealing a decision that was made by Review Office which determined that the WCB should only accept responsibility for half of the costs associated with a roll-in shower and floor upgrade. A hearing was held on September 18, 2008 to consider the matter.

Issue

Whether or not responsibility should be accepted for 100% of the costs associated with a roll-in shower and floor upgrade.

Decision

That responsibility should be accepted for 100% of the costs associated with a roll-in shower and floor upgrade.

Decision: Unanimous

Background

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for injuries that he sustained in a 2006 work related accident. He is now wheelchair dependent and is not able to return to his pre-accident employment.

In October 2007, the worker purchased a new home which required wheelchair accessibility modifications. On November 20, 2007, the WCB’s Home/Vehicle Committee determined, in accordance with WCB Policy 44.120.30, Support for Daily Living, that the WCB would cover up to 50% of the appraised market value of the existing structure for the accessibility modifications to the worker’s home.

On February 28, 2008, a letter was sent to the worker indicating that the WCB would be covering home modification costs for accessibility purposes to his new home in the amount of $55,000. This amount was based on 50% of the purchase price of his home ($110,000.00).

The letter also indicated that the WCB would cover costs for basic structural accessibility as outlined by the contracted planner.

On February 24, 2008, an occupational therapist performed a functional assessment of the worker’s daily living needs in his new home and suggested that a roll-in shower would meet the worker’s bathing requirements.

Subsequent file records indicated that a WCB director denied approval for the costs of a roll-in shower and a floor upgrade which amounted to $2,600.00 as this expense exceeded the overall cost cap of $55,000.00. This decision was relayed to the worker in a letter dated March 11, 2008. On April 29, 2008, the worker appealed the decision to Review Office.

On May 16, 2008, Review Office determined that responsibility should be accepted for 50% of the costs associated with a roll-in shower and floor upgrade. Review Office stated, in part, that the WCB did not arrange for a WCB approved licensed appraiser to establish the market value of the worker’s home prior to committing to a home renovation cap value and that this oversight could have affected the level of WCB’s financial support as mandated by policy. Review Office indicated that it gave weight to the February 24, 2008 occupational therapist recommendations which indicated that the need for the roll-in shower and associated floor upgrade was based on accessibility and safety factors. Review Office indicated that WCB policy 44.120.30 allowed for the discussion between the WCB and the worker, of alternatives such as cost sharing options to resolve home modification requirements that exceed the cap value. The policy allows for cost sharing and by accepting responsibility for one half of the costs of the roll-in shower and floor upgrade, the intent of the policy was maintained. It concluded that one half of the costs equating to 50% of the costs of a roll-in shower and associated floor upgrade be accepted as a WCB responsibility. On July 28, 2008, the worker appealed the decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act), regulations and policies of the WCB’s Board of Directors.

This appeal deals with the provision of benefits on an accepted claim. The worker has asked the WCB to pay the costs associated with the installation of a roll-in shower at his residence. Subsection 27(20) allows for the expenditure of funds considered necessary or advisable to provide assistance in the activities of daily living.

The WCB’s Board of Directors has made WCB Policy 44.120.30, Support for Daily Living. Part I Section F of this policy deals with home modifications.

Worker’s Position

The worker represented himself. He explained his position and called as a witness, the contractor responsible for the renovations to his house.

The worker advised that he originally opted for the use of a bath tub over a shower. He explained that he was living in a special residence which had a tub and he was comfortable with the routine of using a tub. He noted that he needed assistance to use a tub and would have to book his baths in advance.

The worker advised that an occupational therapist recommended changing to a roll-in shower as the worker had commenced using a commode chair for basic bathroom duties and that this could be used in a shower. He stated that use of a shower would make him more independent as he could shower when he wished and did not need the assistance of an attendant. This would also result in cost savings for the WCB.

Regarding the approval process for the change to a shower, he advised that he supported the change but was not told that he would have to pay for the change. He was told by the WCB representative that the change to a shower would be approved by the WCB. He stated that she looked after the approvals and gave the contractor the “green light”. It was not until after the changes were proceeding that he was told that he would have to pay the costs as this exceeded the maximum payment permitted under WCB policy. The worker confirmed that he has paid the costs for the change.

The contractor responsible for the renovations advised that he received instructions from a WCB representative to switch from a tub to a roll-in shower. This change was made just as the plumber was preparing to install the drain in the concrete floor. Upon receipt of the instructions, the contractor had the plumber change the installation to accommodate a roll-in shower. He was later told that the WCB had not approved this change, but noted that to return to a tub would be more expensive, so he was instructed by the WCB representative to complete the work.

The contractor confirmed that the worker was aware of and supported the change to a shower. He also confirmed that the worker did not give him instructions to proceed. This was done by the WCB representative.

Analysis

The issue before the panel is whether responsibility should be accepted for 100% of the costs associated with a roll-in shower and floor upgrade. For the appeal to be acceptable, the panel must find that the worker’s request meets the requirements of WCB policy 44.120.30. The panel finds that the expenditure of funds on the installation of the roll-in shower and related work is an acceptable expenditure under this policy and that it is necessary and advisable to expend the funds to assist the worker with activities of daily living.

Relevant provisions of WCB policy 44.120.30 includes:

B. Eligibility

1. Method

In each case, the WCB examines all the evidence about the worker's injury in order to determine whether the worker, in the WCB's opinion, reasonbly needs the support, service or product.

2. Exceptional Cases

Where unique circumstances arise, the worker may be eligible for additional or alternative support services or products as authorized by a WCB Director in accordance with the financial authority levels established by the WCB.

F. Home Modications

Eligibility

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.

Existing Houses

Home modifications must not exceed 50% of the appraised market value of the existing structure, as determined by a licensed appraiser approved by the WCB.

The panel finds that the worker requires assistance with the activities of daily living and that the expenditure is necessary and advisable pursuant to subsection 27(20) of the Act. The panel notes that the use of a shower was recommended by an occupational therapist, gives the worker greater independence and may result in reduced attendant costs and therefore cost savings for the WCB.

The panel also finds that this expenditure is consistent with the purpose of WCB Policy 44.120.30 and that the worker reasonably needs the shower. The panel notes that the WCB and Review Office had concerns about the total cost of the renovation and specifically that the costs would exceed 50% of the appraised value of the worker’s house as noted under the provision of the policy dealing with renovation to existing houses. The panel notes that an appraisal was not obtained and that the value used for the purpose of this policy is the purchase price paid by the worker. The panel considers the purchase price, in this case, to be a reasonable proxy for appraised value.

However, the panel approves the costs associated with the installation of the shower and the panel relies upon paragraph 2 under Section B of the policy noted above. This section provides that where unique circumstances arise the worker may be eligible for additional products. The panel finds that this is such a case. It is clear from the evidence that the use of a roll-in shower is in the best interests of the worker and may result in long term costs savings for the WCB. As well, the panel notes the evidence establishes that the decision to change to a shower was made by the WCB and not the worker. The worker was not told that he would be responsible for the costs until after the decision was made. The panel considers it unfair to place these costs on the worker without a prior agreement.

The worker’s appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
B. Simoneau, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of November, 2008