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 additional independent living allowance (ILA). 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 support of subsection 27(20), the WCB established 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. The policy distinguishes between "severely injured workers" and "injured workers" and defines these terms.

With respect to an ILA, the policy provides for monetary allowances for day-to-day maintenance and housekeeping at the worker's residence (e.g. snow removal, lawn care, general home repair, housekeeping, laundry, etc.).

In the case of severely injured workers the policy provides that 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.

In the case of injured workers the policy provides a six month maximum on independent living supports. Subsection D.3. of the policy provides:

"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."

Worker's Position

The worker was represented by a worker advisor who provided a written submission. The worker's representative acknowledged that the worker is an injured worker and not a severely injured worker for the purposes of WCB Policy 44.120.30. The worker's representative also acknowledged that the worker has received in excess of the six months of ILA provided in the policy for injured workers. She asked that the worker be considered under subsection B.2. of the policy which provides:

"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."

The worker's representative submitted that the worker's circumstances meet this requirement and that he should be provided with further ILA to assist him with snow removal and yard work. She noted that the worker had an initial compensable injury in August 2004 which caused difficulty with increased activity over subsequent years. She noted that on November 12, 2008, the worker reported increased symptoms after shoveling snow. The WCB accepted responsibility for this injury as a further injury subsequent to a compensable injury.

The worker's representative suggested that the compensable injury and subsequent associated surgeries have left the worker at peculiar risk of further rotator cuff damage. She noted that the treating surgeon has indicated the worker's shoulder is not able to tolerate the demands of yard work and is now beyond repair.

She submitted that the WCB's decision not to provide further financial support to the worker for yard maintenance puts the worker in a position where permanent and irreparable damage to the rotator cuff is likely to occur as he has no option but to do many of the tasks himself.

She asked that the panel consider the worker as an exceptional case under the Policy and grant him additional ILA benefits in consideration of the special circumstances of his case.

Analysis

The panel notes that the worker did not seek benefits as a "severely injured worker." The worker advisor stated that "By our understanding, [the worker] would not be considered to be a severely injured worker, the definition of which includes cases involving major limb amputations, significant brain injuries, severe multiple fractures, significant ongoing mental health difficulties, the final stages of a terminal occupational illness, paraplegia/quadriplegia, severe respiratory condition, significant sight impairment, or wheelchair confinement." The panel agrees with this assessment by the worker advisor.

This leaves the worker to be assessed under the policy as an "injured worker" who is defined as "a person who suffers an injury as a result of a work related accident and whose claim for compensation benefits has been accepted by the WCB." Under the policy, an injured worker is provided with a maximum of six months of ILA. In this case, the worker received ILA during two previous seasons and, due to WCB error, beyond the mandated six months. In his appeal he is seeking additional ILA.

The worker's argument is that he should be granted additional ILA as an exceptional case under subsection B.2. This subsection is applicable where unique circumstances exist. The worker advisor submitted that the worker's case is exceptional. The unique circumstances are that the worker's injuries have left him at peculiar risk of further rotator cuff damage, the worker is unable to tolerate the demands of yard work and his shoulder is now beyond repair.

The panel is unable to find that the worker's case is exceptional or that there are unique circumstances. The worker's case is precisely the type of case that should be treated as an injured worker. The policy provides transitional independent living benefits to injured workers for a maximum of six months where:

"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."