Public Decisions | The Appeal Commission

Decision #146/13 - Type: Workers Compensation

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to her entitlement to an independent living allowance, wood cutting services and travelling expenses related to her WCB claim. A hearing was held on October 30, 2013 to consider these matters.

Issue

Whether or not the worker is entitled to an independent living allowance beyond six months;

Whether or not the worker is entitled to costs for woodcutting service beyond 2009;

Whether or not the worker is entitled to travel expenses to see her doctor in Winnipeg; and

Whether or not the worker is entitled to travel expenses to pick up her prescription medications.

Decision

That the worker is not entitled to an independent living allowance beyond six months;

That the worker is not entitled to costs for woodcutting service beyond 2009;

The panel did not address this issue; and

That the worker is not entitled to travel expenses to pick up her prescription medications.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for injuries to her face, left eye and left arm that she suffered during the course of her employment as a janitor/labourer on June 30, 1998. The worker has since been diagnosed with chronic conjunctivitis and angular blepharitis and has permanent workplace restrictions to avoid the use of tools if working outdoors. In June 2007, the WCB determined that the worker was a "severely injured worker" based on the nature of her eye condition and WCB policy, and therefore was entitled to a monthly ILA (Independent Living Allowance) for at least one year. At a further review conducted in May 2008, the WCB considered the worker to be an "injured worker" and therefore was not entitled to further ILA benefits.

Subsequent file information showed that the worker filed appeals with the WCB's Review Office as she disagreed with a number of decisions that were made by WCB case management with respect to her ILA benefits, woodcutting service and travel expenses to attend for doctor appointments in Winnipeg and to pick up prescription medications (the worker lives in rural Manitoba).

On March 27, 2013, Review Office made the following determinations:

That the worker was not entitled to an independent living allowance beyond six months and that she was not entitled to costs for woodcutting service beyond 2009.

Review Office stated that in order to obtain ILA and the costs associated with woodcutting service, it must be determined that a worker is a "severely injured worker" as defined in WCB Policy 44.120.30, Support for Daily Living.

It noted that "severely injured workers" are eligible for support for daily living as long as the compensable injury prevents day-to-day maintenance and housekeeping of the worker's residence. "Injured workers" on the other hand are eligible to receive benefits for a maximum of six months.

After considering the results of a home assessment that was conducted by the WCB on June 20, 2007 and taking into consideration that the worker did not have a permanent visual impairment, that she continued to have her driver's license and was gainfully employed, Review Office concluded that the worker did not meet the definition of a "severely injured worker" as noted in WCB policy but that she did meet the definition of an "injured worker." The worker therefore was not entitled to an ILA which included wood cutting expenses beyond the six month period provided for an "injured worker."

That the worker was not entitled to travel expenses to see her doctor in Winnipeg.

Review Office referred to the decision it made on December 2, 2005: "…the worker's entitlement to reimbursement for travelling expenses to medical treatment was limited to the distance to the closest medical facility, less the distance travelled to and from work, effective November 5, 2005; and that there was no basis to reimburse the worker for trips made to obtain prescriptions (which the worker contended was a 130 kilometers round trip), as it was not either in policy or based on the existing practices of the WCB."

Review Office indicated that in its earlier decision, it noted that the worker lived north of Winnipeg in the Interlake area and that she travelled to a medical clinic on the southern edge of Winnipeg to attend treatment. Since that decision, the worker had not provided any new material evidence that would alter the Review Office decision that the worker's entitlement to reimbursement for travelling expenses to medical treatment was limited to the distance to the closest medical facility, less the distance travelled to and from work.

That the worker was not entitled to travel expenses to pick up her prescription medications.

Review Office noted that the worker continued to experience eye irritations that required her to take prescribed drops and medications.

Review Office noted that the worker lived in a small community without a pharmacy and therefore must travel to pick up her prescriptions. The WCB medical aid policy does not provide basis to reimburse the worker for trips made to obtain prescriptions and it was not in line with the existing practices of the WCB. Review Office therefore found that the worker was not entitled to travel expenses with regards to her medications.

As the worker disagreed with Review Office's findings, an appeal was filed with the Appeal Commission and an oral hearing was held on October 30, 2013.

Reasons

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.

The Board of Directors has enacted two policies which apply to the issues in this appeal: Policy 44.120.30, Support for Daily Living and Policy 44.120.10, Medical Aid.

Policy 44.120.30 : This policy deals with “Support for Daily Living.” It coordinates 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 or 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 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

Policy 44.120.10: This policy presents a comprehensive and co-ordinated approach to delivery of medical aid services to injured workers. The provision of medical aid attempts to minimize the impact of the worker’s injury and to enhance an injured worker’s recovery to the greatest extent possible.

Reimbursement of expenses to attend compensable medical treatment is addressed in section 3(a) of the policy. It provides in part:

3. Expenses

a. Expenses Incurred to Attend Compensable Medical Treatment

i) The WCB will reimburse an injured worker’s actual reasonable expenses related to travelling to medical treatment (wage-loss, travel, accommodations, meals and reasonable telephone charges) which are in excess of costs normally incurred by the worker while travelling to and from work.

ii) The WCB may provide escorts for medical appointments …

iii) All travel reimbursements should be based on the most cost-effective alternative and take account of the injured worker’s medical functioning level.

The Administrative Guidelines, set forth in section C of the policy, further address the basis on which travel expenses will be reimbursed:

iii) Transportation/Travel. Mileage will be reimbursed at the rate that a WCB employee would receive for travel within the province. The cost of necessary local transportation will be reimbursed but the WCB does not pay for the cost of personal trips (e.g., shopping, visiting, etc).

Worker's Position

The worker was accompanied at the hearing by her sister. The worker explained her reasons for appealing and answered questions from the panel. The worker explained that she is appealing the WCB and Review Office decisions because she incurs significant expenses that she would not have incurred had she not been injured at work.

The worker explained that as a result of the workplace accident she has a chronic eye condition which prevents her from working outdoors and specifically using tools outdoors.

The worker advised that she believes the WCB should pay the costs she incurs maintaining her yard and cutting firewood. She said that she must hire someone to perform these tasks as she is unable to work outside which is a direct result of the workplace injury. She said that she only received an ILA on one occasion. The worker said that prior to the injury, she and a friend would jointly cut firewood and haul it to their homes. She can no longer do this. She said that her primary source of heat in her home is wood.

With respect to the WCB policy and the definition of severely injured worker, the worker advised that her life has changed in that she cannot do the things she used to do. She suffers from chronic daily infections. She feels that she meets the requirements to be classed as a severely injured worker.

Regarding the travel expenses to see her physician, she said that in 2008 it was agreed that she would be compensated for travel expenses. She also said that when her physician moved to Winnipeg from the community nearer her home, the WCB agreed that she should continue to see this physician. She said that the WCB originally paid her expenses for travel to Winnipeg. The WCB then changed its position and would only pay expenses related to travel to the nearest community with physicians. She said that she can accept this, but feels the WCB should pay based on the actual location of her home and driving distance to the nearby community, and not from her mailing address which is 4 to 5 miles from her home. She advised that she discussed this with her case manager who has agreed to consider her request.

The worker advised that she sees her physician every 3 to 4 months. She said that he examines her eye at each appointment.

On the request for reimbursement of travel expenses for picking up prescription medications, she advised that she picks them up at the nearest pharmacy. She said that she is only provided with 2 weeks of prescriptions and therefore must go the pharmacy every 2 weeks. This is a significant cost because a round trip to the pharmacy is approximately 120 kilometers.

Employer's Position

The employer did not participate in this appeal.

Analysis

The worker appealed four issues to the Appeal Commission.

1. Whether the worker is entitled to an ILA allowance beyond 6 months.

Under Policy 44.120.30, injured workers are entitled to receive an ILA for 6 months. Severely injured workers are entitled to an ILA for as long as the compensable injury prevents day-to-day maintenance and housekeeping of the worker's residence. For the worker to be successful on this issue, 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 that the worker can:

work full time
drive a motor vehicle
perform all self care, including treating her eyes
do her own house work inside her home.

On this point, the panel notes that a home assessment was performed by the WCB on June 20, 2007. The assessor found that the worker was independent in all areas including; prepare meals, shop, housekeep inside her home, and drive. It was noted that she had no family around to assist with outdoor maintenance.

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 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's restrictions relate to working outdoors, including the use of tools. While these restrictions prevent the worker from performing yard maintenance and cutting fire wood, these restrictions do not fall within the types of severe injuries and associated disability that would qualify for additional coverage.

After considering the nature of the worker’s injury, her 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.

2. Whether the worker is entitled to costs for woodcutting services beyond 2009.

The worker has asked that the WCB reimburse her for the cost of firewood that she burns to heat her residence. She said that due to the injury she is not able to cut and split her own firewood, as she did prior to the injury. As a result she incurs the expense of having a third party provide fire wood. The panel notes that cutting and splitting firewood for home heating is not specifically identified in Policy 44.120.30, which refers to day-to-day maintenance of the worker's residence; e.g., snow removal, lawn care, general home repair, housekeeping, laundry, etc.

The panel considered whether cutting and splitting firewood for home heating is the type of activity which policy intended to fall within the category of day-to-day maintenance and housekeeping. The panel finds that cutting and splitting wood is an activity of daily living and can only be paid to workers who meet the definition of "severely injured worker." As the panel determined that the worker is not a "severely injured worker" for the purpose of Policy44.120.30 she is not entitled to reimbursement for costs incurred in cutting firewood.

The worker's appeal of this issue is dismissed.

3. Whether the worker is entitled to travel expenses to see her doctor in Winnipeg.

The panel notes that section 3(a) (i) of the Medical Aid policy provides that:

On this issue, the worker advised that she is satisfied with the current arrangement where the WCB pays her mileage expense to the nearest centre with a doctor. She indicated that she has asked the WCB to calculate the mileage used in the formula, from her actual residence and not from her postal box. She said the distance from her actual residence is greater than from her postal box. She advised that her case manager has agreed to look into this. She is not asking the panel for a determination of the "start point" of her travel expenses at this point in time.

The panel accordingly does not address this issue.

4. Whether the worker is entitled to travel expenses to pick up her prescription medications.

For the worker's appeal of this matter to be successful, the panel must find that such an expense is permitted under the Policy and is reasonable in the circumstances. The panel was not able to make this finding.

The worker has asked for reimbursement of travel expenses to pick-up prescription medications. She says that she must drive a considerable distance, 120 kilometers return trip, to a pharmacy to pick up medications and that she must do so every 2 weeks. She advised that this is the nearest pharmacy and that it is located in a grocery store.

The panel notes that section 2 of the policy states that:

"To minimize the impact of worker's injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices, including prescription drugs, over-the-counter medical supplies, braces, prosthetic devices, wheelchairs, dentures, hearing aids, eye glasses, contact lens and other devices."

The panel also notes that section 3 (a) (i) of the policy permits reimbursement for actual reasonable expenses related to travelling to medical treatment.

The panel has reviewed section 3 (a) (i) and 2 (a) (i) and concludes that section 3 (a) (i) is intended to apply to actual treatment where the worker's physical presence is required as part of the treatment, including fitting for a prosthesis or eye glasses, or attendance at a physician for the purpose of reviewing or providing prescriptions. The panel does not find that this section applies to the act of picking up prescription drugs which does not require the personal attendance of the patient or can be done in the ordinary course of a worker's general activities and including shopping, etc.

In this case, the panel notes that the pharmacy is located in a grocery store which affords the worker the opportunity to perform other necessary duties, such as purchasing groceries. The panel also notes that the store is located in a larger community which provides many other services which the worker may require from time to time.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 14th day of November, 2013

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