The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he did not meet the criteria of a "severely injured worker" as defined under WCB Policy 44.120.30 "Support for Daily Living" and therefore was not entitled to an Independent Living Allowance ("ILA") prior to November 2011 or after April 2012. A hearing was held on April 29, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to an Independent Living Allowance prior to November 2011 or after April 2012.

Decision

That the worker is not entitled to an Independent Living Allowance prior to November 2011 or after April 2012.

Decision: Unanimous

Background

The worker has a 1986 compensable claim with the WCB for chronic right lateral epicondylitis. The worker has received benefits from the WCB which included a permanent partial disability award and special additional compensation (SAC) benefits. The worker was also in receipt of an ILA of $120.00 per month for the period November 2011 to April 2012 to cover the costs associated with snow removal as it was determined that the worker met the definition of an "injured worker" under WCB Policy "Support for Daily Living."

On March 19, 2012, the worker asked the WCB to provide him with an ILA between 1992 and October 2011 as well as after April 2012. On March 19, 2012, the worker's request was denied by the WCB adjudicator. The worker disagreed with the decision and an appeal was filed with Review Office.

On April 12, 2012, Review Office confirmed that the worker was not entitled to an ILA prior to November 2011 or after April 2012. Review Office referred to subsection 27(20) of The Workers Compensation Act (the "Act") and WCB Policy 44.120.30 "Support for Daily Living." Review Office noted that the policy distinguished two different categories of workers for the purpose of determining the extent of a worker's entitlement to an ILA. Those considered to be "injured workers" are entitled to an ILA for a maximum of six months. Those workers designated to be "severely injured workers" may be provided with an ILA for as long as the compensable injury prevents day-to-day maintenance and housekeeping of the worker's residence.

Review Office acknowledged that the worker continued to have ongoing physical difficulties related to his compensable injury but found that he did not qualify for ongoing ILA assistance which was available to "severely injured workers." It found that the worker qualified for entitlement to an ILA as an "injured worker" which limited his entitlement to a maximum of six months. On January 19, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on April 29, 2013.

Reasons

Applicable Legislation and Policy

The Appeal Commission is bound by 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” (the "Policy"), for the purpose of coordinating the WCB’s approach 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, in part, 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…Workers. 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 by 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 was assisted in his presentation by an advocate who also acted as a translator for the worker. The worker acknowledged that he has received ILA benefits for a period of six months (November 2011 to April 2012), but is seeking an extension of this benefit both before and after this period of time, back to the date of his injury in 1986, and forward indefinitely from April 2012.

His evidence was that he is unable to do the outdoor tasks associated with living in a home, including snow shoveling and lawn work. He has been assisted by family members in these tasks for many years. During the six month period in which he received an ILA benefit, he hired his son who was living out of the parental home, to do snow removal.

In response to questions from the panel, the worker indicated that he was able to do most activities of daily living, including dressing himself using both arms, comb his hair and shower using his right arm, and was able to do many household tasks with his right arm, particularly if he restricted the weights used. He also acknowledged that he was able to go to school and participate in a vocational rehabilitation process earlier in the claim, before he was provided with a SAC benefit. This benefit was provided to him until March 2012 when he reached age 65.

The worker further advised that his chronic right lateral epicondylitis condition, which was the compensable injury, has remained stable over the years. His doctor has been reporting that this condition has remained the same, and the worker agreed with those reports. There has been no recent treatment and none is planned, and he has been on the same low dosage pain medications for many years. His functional limitations are primarily focused on reduced range of motion (nothing overhead) with his right arm, some reduction in strength, pain, and swelling on occasion. The worker also has a number of non-compensable medical conditions which affect his level of function, in particular issues with his neck, spine, legs, and sight.

As for his need for the ILA, the worker noted that he was not getting younger only older, and his monthly income had been reduced once he reached age 65, with the end of his SAC benefit. He was seeking to have the ILA benefit backdated to 1986, the date of his claim to assist him financially.

In response to a question by the panel, the worker and advocate indicated that they had not read the relevant WCB policy that sets out the criteria for the provision of independent living allowances. They were provided with a copy at the hearing and were given the opportunity to review it by themselves, following which the panel asked additional questions. The list of injuries that would qualify a worker as a "severely injured worker" rather than an "injured worker" was discussed, with the worker and advocate acknowledging they were unable to pinpoint a close comparison between the worker's medical condition and any of the "severely injured" categories. The one area that was suggested as possibly having relevance was the area of "significant ongoing mental health difficulties." In this regard, the worker discussed difficulties in his marriage that have arisen because of his workplace injury.

Analysis

The issue before the panel is whether the worker is entitled to an ILA beyond and prior to the six month period that he has already received. For the worker to be successful on this issue, the panel must find that the worker has an additional 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 it is defined under the Policy. After considering the evidence, 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, either before or after the six month period for which he has already received the allowance.

The panel has reached this conclusion based on the following findings:

The worker's original 1986 injury led to a chronic right lateral epicondylitis condition, for which he has received various WCB benefits since 1986. This condition has permanently affected the worker's use of his right arm. From the evidence on file and at the hearing, the worker continues to have right elbow forearm pain and tenderness, swelling of the elbow and reduced elbow range of motion. This condition has remained essentially unchanged over the years, according to the worker's evidence at the hearing. It has resulted in permanent restrictions which led the WCB to determine that the worker was unable to continue in his pre-accident occupation as a concrete finisher. After some vocational rehabilitation efforts, the worker was provided with a SAC allowance for the remainder of his projected work career until age 65.

• As such, the panel finds that the worker qualifies at the very least as an "injured worker" under the Policy. This has been the basis on which the WCB agreed to provide the worker with 6 months of an ILA, when the worker asked for it in 2011. In the panel's view, the wording of this Policy provides for only the one 6-month payment, regardless of the length of the claim.
• The question then turns on whether the worker's injuries are such that he qualifies for the second category of entitlements for an ILA. Is the worker a "severely injured worker" as defined in that Policy? 
• The panel notes that the Policy provides a sample list of the types of injuries that the WCB considers would qualify a worker as a "severely injured worker." This list describes some very significant types of injuries, suggesting that granting long term ILAs under this category will be limited to extraordinary levels of disability that create limits and difficulties on a broad range of daily living activities. The types of injuries listed range from major amputations to significant brain injuries, terminal illnesses, and para/quadriplegia, significant sight loss, and so on. While this list is not exhaustive, the panel's view is that it does provide a framework against which the worker's injuries should be assessed, to see if he qualifies. 
• At the hearing, the worker's evidence was that he is reasonably functional in his daily life; he can perform many activities of daily living using both arms for many activities of daily living, including dressing himself, brushing his hair and teeth, showering, light tasks around the house and driving a car using both hands on the steering wheel. In the panel's view, these types of activities are consistent with the levels of function associated with the "injured worker" category in the Policy and do not show the extraordinary levels of disability that are associated with the sampling of injuries listed in the "severely injured worker" category. 
• As for the worker's contention that he may qualify on the basis of having "significant mental health difficulties," the panel notes that a compensable psychological condition has not been considered or accepted as part of this claim, and thus is not available for consideration by the panel. 
• The panel respectfully acknowledges and sympathizes with the worker's current financial hardships, but notes that it does not have the discretion to provide a benefit or allowance outside of the framework of the Act or WCB policies, or to change the framework or to set it aside. Here, the Policy provides a specific framework for who qualifies for a longer independent living allowance and who doesn't.

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 six month period which has already been provided to the worker as an “injured worker” under the Policy. The worker’s appeal on this issue is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 6th day of June, 2013