The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") which denied responsibility for renovation costs to his home and the costs related to heated handle grips for his motorcycle. A hearing was held on June 17, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to renovation costs on his home; and

Whether or not the worker is entitled to heated handle grips for his motorcycle.

Decision

That the worker is not entitled to renovation costs on his home; and

That the worker is not entitled to heated handle grips for his motorcycle.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a right thumb amputation that occurred at work on December 10, 2010. The worker has work restrictions related to his right hand and in April 2012, the worker was classified temporarily as a "severely injured worker" in accordance with WCB policy 44.120.30, Support for Daily Living.

During an independent living allowance assessment conducted by the WCB on May 31, 2012, the worker requested financial assistance to cover the labour costs associated with completion of the installation of a front picture window which he had started installing prior to his compensable accident. The worker indicated that he could not complete the finishing work as he was unable to use a drill or do fine carpentry work due to his compensable injury. He said the window required new casings as well as gyproc. During a later telephone conversation with his WCB case manager, the worker also asked the WCB to cover the costs associated with the purchase of heated handle grips for his motorcycle, as his right hand was sensitive to the cold.

By letter dated July 19, 2012, the WCB advised the worker that his request for financial assistance related to home renovations and the heated handle grips for his motorcycle did not meet the criteria outlined in WCB Policy 44.120.30. On October 18, 2012, the worker appealed the decision to Review Office.

In a submission to Review Office dated October 18, 2012, the worker pointed out that he was in the process of re-doing his kitchen and living room and always had done his own work around the house. This work had been interrupted by his injury and he was no longer able to use a hammer or other tools. He requested the WCB complete those renovations. In a later discussion with Review Office, he specifically identified the window drywall and kitchen counter replacement and backsplash.

On November 21, 2012, Review Office confirmed that the worker was not entitled to renovation costs on his home. Review Office outlined the worker's position that he was at a disadvantage (cost wise) post accident because the renovations that he could previously do himself must be hired out.

Review Office indicated that the WCB did not provide reimbursement of costs to anyone for purposes not related to the compensable injury. Review Office felt that the installation of the window which started three months prior to the compensable injury was not related to the compensable accident. It felt that the kitchen renovations that were started post accident were not a consequence of the compensable injury.

Review Office also determined that the worker was not entitled to heated handle grips for his motorcycle. Review Office noted that the worker purchased his motorcycle post accident and that this was a pleasure vehicle and not his main form of transportation. It stated that the modification requested by the worker did not meet the requirement for vehicle modifications as the requested work was not required for the safe operation of the vehicle. On February 25, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker has an accepted claim for a workplace injury. He is asking that the WCB pay certain home renovations costs and vehicle modification costs.

The WCB Board of Directors enacted WCB Policy 44.120.30, Support for Daily Living. The Policy Purpose states:

This policy co-ordinates the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products.

Worker's Position

The worker attended the hearing with his spouse.

Issue 1: Whether the worker is entitled to renovation costs on his home.

The worker asked the panel to approve his request for reimbursement of labour costs that he incurred in completing work at his home. He advised that prior to the workplace injury he was able to do most home renovation and repair projects. He was very handy and did not require paid assistance. However, since the injury he has required assistance with home renovation/improvement projects. He referred to three projects which have been completed at his residence since the December 2010 injury.

The first project involved replacing a large window. He started this project before he was injured. He had installed the window but had some finishing work, drywall and trim work to complete around the window. He initially asked the WCB to pay the costs for having this work completed, but when this was refused he arranged for a "buddy" to complete the work for a nominal payment, not involving cash.

The second project involved replacement of the kitchen counters and backsplash. This project was commenced in 2012.

The third project involved removing and installing carpeting.

The worker was asked whether the renovations were needed as a result of the injury. The worker advised that the work was not injury-related nor as a necessity of his injury. He said it was just regular maintenance. He said the kitchen backsplash needed to be replaced as the grout was falling out and the surface of the counter was lifting off.

Issue 2: Whether the worker is entitled to heated handle grips for his motorcycle.

The worker advised that he owned a motorcycle about 7 years before the injury but sold it 1 year later. However, he became interested in biking again and began saving to buy a new motorcycle before the injury. In the summer of 2010, before the injury, he went to Sturgis, South Dakota which is a famous gathering of motorcycle enthusiasts. He purchased the motorcycle in March 2011 and in July 2011 he went on a road trip. However he found out that his injured hand is hyper sensitive to temperature and gets very cold. He has driven with one hand and pulls over if his injured hand gets too cold. He has tried mittens with hot shots but considers this to be dangerous. He believes that heated handle grips are the safest solution for his hand.

The worker advised that he is seeking only payment for the handle grips. He has found someone in his community who can install the handle grips.

The worker advised that he had two ATVs and the WCB paid to change the throttles on the ATVs.

In answer to a question, the worker advised that he did not ask his physician whether it was okay to drive a motorcycle but told him that he bought one. He advised that he is currently restricted from using his injured hand. The worker advised that he has 2 more surgeries on his hand with the next scheduled for September 2013.

Employer's Position

The employer was represented by its WCB Administrator who participated by teleconference. The representative answered questions from the panel but did not state a position.

Analysis

Issue 1: Whether the worker is entitled to renovation costs on his home.

For the worker's appeal to be successful the panel must find that the renovation costs are for general home repair under Section D of the policy or for necessary modifications under Section F of the Policy.

Section D of the policy deals with independent living. It 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 so allows for 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.).

Section F of the policy provides that as a result of an accident, a worker may be unable to access all or portions of his residence either temporarily or permanently. In addition, specific modifications to the residence are often required to allow the worker to perform basic tasks of daily living. The WCB may provide financial support for pre-approved modifications to a worker’s residence under the policy if they are required specifically as a result of the compensable injury.

The panel has considered whether the replacement of a counter and backsplash and the installation of a carpet are general home repair as allowed under Section D. The panel finds that this work was beyond what is intended under section D.

The panel finds the counter, backsplash and carpet installation to be home improvement projects and not simple home repair as envisioned by the policy. The panel notes that the policy permits expenditures for maintenance to prevent increased safety risks that may arise if the maintenance is not performed.

With respect to the completion of the window installation, the panel notes that the worker made arrangement for a nominal payment to the friend who performed the work. The panel finds that this type of arrangement is not a reimbursable expense under the policy.

The panel also considered whether these expenditures are authorized under Section F as modifications to allow access to the residence or allow the worker to perform basic tasks. The worker was asked whether anything was done specifically to help him because of his right-hand injury. He replied "No." The panel finds that the counter, backsplash and carpet installations do not meet the requirements of Section F, as they were not required due to the injury.

The worker's appeal of this issue is dismissed.

Issue 2: Whether the worker is entitled to heated handle grips for his motorcycle.

In reaching its decision the panel has considered Policy 44.120.30. The panel notes that the purpose of the policy:

This policy co-ordinates the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products. (Underlining added)

Section G of the Policy deals with modification to motor vehicles. This section provides, in part, that:

"The WCB may provide support for vehicle modifications that improve a worker's ability to travel on roads and highways."

It defines modification as:

"Modification refers to devices or products that help a worker operate a vehicle independently. Examples include spinner knobs, hand controls, dimmer switches, and modified seats."

The policy states that "If a worker requires a modified vehicle to provide safe transportation, the WCB may pay the costs associated with the vehicle modification." (Underlining added)

For the worker's appeal to be successful the panel must find that the vehicle modification is required due to his injury and to provide safe transportation. Based upon the evidence currently available, the panel was not able to reach this conclusion.

The worker advised that he acquired the motorcycle after the incident and does not use it as his primary mode of transportation. The worker also advised that he did not discuss riding the motorcycle with his physician, although he believes his physician is aware that he has the motorcycle. The worker's spouse confirmed that "At the present moment, he can't because there's a restriction of absolutely no use of the right hand till his next surgery."

The worker argued that the heated handle grips are required for the safe operation of the motorcycle because his hand is hypersensitive to temperatures and gets very cold impairing his ability to drive the vehicle.

The panel notes that the medical evidence currently on the file does not indicate that the hypersensitivity is a permanent condition or that it is a result of the workplace injury. The panel also notes that no testing has been performed on the worker's nerves and that the worker is not aware of any pending tests.

The panel finds that the WCB should not pay for heated handle grips at this time, given that:

1. Currently the medical evidence on file does not confirm that the worker's hypersensitivity is related to the workplace injury or that it is a permanent condition; and,
2. Currently the worker is restricted from using his right hand for any activity which would include driving a motorcycle.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of July, 2013