The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission is bound by The Workers Compensation Act (the “Act”) and 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 relating to “Support for Daily Living”, for the purpose of coordinating the WCB’s approach to supporting workers’ participation in daily workplace and personal activities after an accident.

Section D of the Policy deals specifically with assistance that will be provided to injured workers for “Independent Living”, which is defined as “support for daily maintenance and housekeeping at the worker’s residence.” The Policy provides as follows:

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 reflects 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 Worker The WCB may provide injured workers support for independent living for a maximum of 6 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.”

Section A of the Policy defines “injured workers” and “severely injured workers” as follows:

1. Workers An injured worker is a person who suffers an injury as a result of a work related accident and whose claim for compensation benefits has been accepted the WCB.

A severely injured worker is a person who requires temporary or permanent assistance with communication, mobility or self-care as a result of the workplace accident. While the WCB will consider each worker’s case to determine whether or not the worker should be considered severely injured under this policy, examples of severely injured workers include those who experience the following:

· 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 Worker’s Position

The worker testified that the pain in his ankle is constant. He testified that he is seeking an extension of the independent living allowance from April 2011 until the present time to cover the cost of biweekly cleaning of his home, snow removal and assistance preparing meals. He advised the panel that currently he is paying his family members to provide this assistance. The worker also testified that he has been fitted with two pairs of orthotics; that he can walk about 5 blocks if he takes his medication; that he can mow his lawn; grocery shop for himself; do the laundry, and pick up and clean around the house provided he does not have to use a ladder.

Analysis

The first issue before the panel is whether the worker is entitled to an independent living allowance beyond the seven month period that he already received. For the worker to be successful on this issue the panel must find that the worker has a continuing entitlement to financial assistance, as defined by the Act and WCB policies. In particular, the panel must find that the worker falls within the definition of a “severely injured worker” as set out in WCB Policy 44.120.30. After considering the evidence and the WCB policy, the panel finds that the worker does not fall within the category of a “severely injured worker” and is therefore not entitled to any further independent living allowance.

In reaching its conclusion, the panel notes the following:

• The worker participated in a Functional Capacity Evaluation and demonstrated that he can stand for 10 minutes; walk for 10 – 30 minutes; has no sitting limitations; has no bending/stooping limitations; can climb stairs using a handrail; he can crawl and kneel with limited difficulty getting in and out of posture; and he can reach above his knees. He is unable to crouch or squat;
• At the hearing the worker testified that he was able to hand mow 1.5 acres, which took him a total of 16 hours to do each time. He also rented a lawnmower and was able to mow 400 feet of frontage; and he is able to pick and trim the bushes around his house;
• With respect to housekeeping, the worker testified that he is able to do his own laundry, clean and pick up around the house if he doesn’t have to use a ladder, that he can get on his knees and wash, and he can grocery shop for himself.

In determining that the worker cannot be considered a “severely injured worker” under the WCB policy, the panel is of the view that the examples listed of the types of injuries that would classify a worker as severely injured indicate a significant 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. The worker is able to perform activities that require a considerable amount of strength and mobility such as mowing his grass by hand. The panel also places significant weight on the worker’s Functional Capacity Evaluation, which demonstrates that he has the ability to stand, walk, sit and reach at a level that would allow him to perform a broad range of daily living activities. However, even if the worker had restrictions in respect of these types of activities of daily living, the nature of the worker's injuries to his left foot do not fall within the types of injuries as that would qualify for additional coverage.

After considering the nature of the worker’s injury, his current functionality, ability and restrictions, the panel has concluded on a balance of probabilities that the worker cannot be considered a “severely injured worker” under this policy and is not entitled to an independent living allowance beyond the period provided for an “injured worker”. The worker’s appeal on this issue is dismissed.