The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The issue before the Appeal Commission is whether the worker is entitled to an independent living allowance beyond a six month period. In addressing this question, the Appeal Commission is bound by The Workers Compensation Act (the "Act") and the policies of the WCB's Board of Directors.

Subsection 27(20) of the Act provides that the WCB may make expenditures on academic, vocational, and rehabilitative assistance for injured workers including expenditures for assistance in the activities of daily living.

In accordance with subsection 27(20), the WCB established Policy 44.120.30, Support for Daily Living, which coordinates the WCB’s approach to supporting workers’ participation in daily workplace and personal activities after an accident.

Section A of the policy defines injured worker and severely injured worker. It provides, in part:

A. Definitions

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 reflect 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.

Workers Position

The worker's appeal form was received on February 10, 2010. He subsequently provided a written submission dated March 29, 2010. He reviewed his medical condition and restrictions resulting from the accident. In support of his appeal he wrote:

"Limitations have been placed upon myself, by my surgeon and the WCB, as to what I should be able to do and not to do regarding my shoulder condition… Shoveling snow I feel, it outside the guidelines that have been laid out for me. The weight exceeds my limit, the repetitive motion is aggravating, and the leverage required to shovel heavy snow is beyond my restrictions. I have paid for help out of my pocket, since after my R shoulder surgery in 2003, for such tasks as snow shoveling, raking the grass, hoeing the flower beds, sweeping the driveway and even cutting and trimming the lawn at times."

The worker asked to be granted a continuing ILA to assist him with the cost of snow removal.

Employer's Position

The employer's representative provided a written submission dated July 14, 2010. The representative advised that the employer agreed with the Review Office decision. He reviewed WCB Policy No.44.120.30. He concluded that the worker does not meet the definition of severely injured worker under the policy and accordingly is not entitled to an independent living allowance beyond the six months period which has already been paid to the worker.

Analysis

The issue before the panel is whether the worker is entitled to an ILA beyond the six month period that he has already received 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 is not entitled to an ILA beyond that which he has already received for the reasons that follow.

Under the policy, different levels of financial support for independent living are provided to workers who meet the definitions of a "severely injured worker" or an "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, current functionality, ability and restrictions to determine his status under the policy.

The panel notes that the worker:

• participated in a Functional Capacity Evaluation (FCE) and demonstrated an inability to weight bear through the left wrist and shoulder, a limit on lifting, and an inability to use his right and left arm at a repetitive rate of work,
• was assessed with a 7.5% PPI rating which included 4% for loss of range of motion in his right shoulder and 1% for loss of range of motion in his left shoulder,
• has restrictions of no lifting above shoulder height (bilateral), limit stressful activity on left wrist and shoulder, and no lifting > 20 lbs.

However, the panel finds that these limits are not sufficient to classify the worker as a "severely injured worker" as defined in the policy.

In arriving at this conclusion, the panel places significant weight on the findings of the worker's Functional Capacity Evaluation (FCE). During the FCE the worker demonstrated significant abilities, including no limitations on:

standing walking

sitting bending/stooping

climbing/stairs crouching/kneeling

The panel also notes that the worker has returned to work in a regular and productive job with no problems when staying within his restriction and has hobbies and interests that show he has certain abilities to be active outside of his full time employment without use of mechanical aids for mobility or light activities.

The panel specifically notes that the policy does not equate medical restrictions that preclude the performance of an activity of daily living with a finding of "severely injured." It is clear that the examples listed in the policy of a severely injured worker indicate an extraordinary level of disability that create limits and difficulties on a broad range of daily living activities which are not present in the facts of this case.