The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

Issue

Decision

Decision: Unanimous

Background

In July 2002, the worker filed a claim with the WCB for bilateral carpal tunnel syndrome which he attributed to his use of vibratory tools in the workplace. His claim for compensation was accepted by the WCB and benefits and services were paid to the worker. In 2010, the worker was awarded a 4.6% Permanent Partial Impairment award in relation to his bilateral wrist condition.

On October 14, 2010, a WCB case manager advised the worker that he was entitled to a maximum of 6 months ILA benefits for snow removal at $100/month from November 2010 to April 2011 inclusive based on a review of the medical information on file and WCB Policy 44.120.30, Support for Daily Living. The worker was further advised he was not entitled to ILA benefits beyond May 1, 2011 and/or pre-dating November 2010, as he did not meet the policy's definition of a "severely injured" worker. On January 17, 2011, the worker appealed the decision to Review Office.

In a decision dated February 17, 2011, Review Office confirmed that the worker was not entitled to ILA benefits beyond the six month timeframe as described in the case manager's letter of October 14, 2010. Review Office noted that an ILA can be of a duration longer than six months if the WCB deemed that the worker was a "severely injured worker". Review Office determined the worker did not meet the definition of a severely injured worker as outlined in the WCB's policy. On March 10, 2011, the worker appealed the decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

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.

Worker's Position

"…Review Office offered a dissertation on whether Review Office should consider me a severely disabled worker for the purposes of Policy 44.120.30. However, that decision was not before Review Office. That decision was made when it was determined that I require assistance with mobility along with day to day maintenance and housekeeping. The issue above is the issue to be considered.

WCB Policy 44.120.30 defines a severely disabled worker as:

"…a person who requires temporary or permanent assistance with communication, mobility or self-care as a result of the workplace accident."

There are no provisions in the Policy for the system to administrate it on a basis of whether it is felt the extent of injury(s) crosses some sort of threshold contained in the Policy examples. Other than an automatic inclusion, the examples have no meaning in terms of a Policy requirement, as Policy states each case will be determined on its own merit. Using the examples as a threshold yardstick of some sort does not provide a determination of the merits and justice of my case.

That determination was made by a WCB assessment that I require yard maintenance assistance as a result of compensable injury(s) set at a rate of $100 per month. As such, Policy determined that I met the definition of a severely disabled worker and Policy rules. It is therefore not open for this issue to be re-decided by an adjudicator, manager, review officer, or an appeal commissioner.

Review Office is incorrect in stating that I "…felt my bilateral wrist condition would prevent…" as there is an involvement with my toes and ankles that was left out. Review Office is also incorrect in stating that whether I am capable of performing the activities of independent living after six months is not relevant. Policy entitlement does not automatically end at this time.

WCB Policy 44.120.30 confirms that:

"The WCB will provide support that reflects the reasonable level of need for as long as the compensable injury prevents day to day maintenance and housekeeping."

As my disabilities are permanent, it is not possible for a six month payment to reflect the reasonable level of need for as long as the compensable injury prevents me from doing day to day maintenance and housekeeping. Review Office states it is aware of this, and then states the Board has put a Policy in place that prevents permanent entitlement for permanent needs. Unless… maybe? … perhaps?

Review Office offered a comment about "unique circumstances" and advised that not being able to perform the activities of independent living does not qualify. Review Office went on to remark about what it feels correctly interprets the intent of the Policy. Review Office is not qualified to do so.

The intent of Policy belongs to those who put the Policy in place, not revolving clerical staff. Any distinction made in the Policy is defined by the Policy in the Policy. No Policy intends being elastic baseline for whoever feels they should place whatever is felt should be placed upon it.

Review Office based its decision on what it felt and not on what is actually in the Policy."

The employer did not participate in the appeal.

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 noted WCB policy. The panel found that the worker is not entitled to an ILA beyond the six months that he has already received for the reasons that follow.

The panel has also taken into account the information included in the Independent Living Allowance Assessment which was completed by two WCB rehabilitation specialists on March 10, 2010. The panel notes the assessment found that the worker:

• Does not require assistance with housework/home cleaning, meal preparation, dressing, feeding, showering
• Is able to drive
• Is able to walk two dogs daily
• Is able to carry out grocery shopping with assistance of another person
• Gets sore wrists with all hand activities
• Is not able to perform snow removal or lawn care

The panel acknowledges that the worker's combined injuries have placed limitations on his abilities. However, the panel finds that these limits are not sufficient to classify the worker as a "severely injured worker" as defined or contemplated in the policy.

The panel specifically notes that the policy does not equate medical restrictions that preclude or limit the performance of an activity 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 creates limits and difficulties on a broad range of daily living activities which are not present in the facts of this case.

The panel has considered all the worker's injuries and finds, on a balance of probabilities, that the worker is not a "severely injured worker" for the purpose of the policy and is not entitled to an ILA beyond the six month period provided for an "injured worker".

The worker's appeal is dismissed.

Panel Members

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of October, 2011