The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to an additional independent living allowance with respect to his compensable injury. A review was held on June 11, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to an additional independent living allowance.

Decision

That the worker is not entitled to an additional independent living allowance.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a non-specific repetitive motion injury to his right arm, wrist and hand. The compensable diagnosis was enhancement of pre-existing degenerative neck changes.

On April 1, 2010, the WCB determined that the worker was entitled to an Independent Living Allowance ("ILA") of $255.00 for a period of six months. About one month later, an ILA assessment was carried out at the worker's residence by a WCB rehabilitation specialist. An ILA was established at $247.50 for a period of five months. The worker therefore received a total of six months ILA.

In November 2010, the worker's representative asked the WCB to extend the worker's ILA due to the severity of the worker's physical and medical conditions.

On November 16, 2010, the director of sector services approved the extension of the ILA for one further year. On November 17, 2010, a letter was sent to the worker to extend the ILA and reassess at that time. The rationale for the decision was as follows:

1. Permanent restrictions applied to this claim have not changed since the ILA recommendations were made in April 2010.

2. You would continue to require assistance with snow removal/grass cutting, spring cleanup, and overhead activities related to housekeeping, cleaning windows and eavestroughs.

3. [The worker's wife] has a medical condition that precludes her from performing these tasks."

In December 2011, a WCB director reviewed the claim file to determine whether the ILA should continue.

On December 13, 2011, the worker was advised that he did not meet the criteria for a severely injured worker as outlined in WCB policy, although it was recognized that he continued to have limitations related to his compensable injury. It was explained that injured workers were usually provided up to six months of ILA. It was intended to provide the worker with some assistance while in the acute phase of their injury. It was not intended to provide service on an ongoing basis. The WCB policy allowed for provision of ILA beyond six months in "unique circumstances" but the worker's inability to perform all the duties required in maintaining his home did not meet this test. It was confirmed that the WCB would provide the worker with an additional 3 months of ILA until the end of March 2012 given that he had received this allowance since April 2010.

Subsequent file records showed that the worker's representative spoke with different WCB staff between February 2012 and August 2013 regarding an extension of ILA services to the worker. The requests were denied as per previous decisions. On August 21, 2013, the worker appealed the decision to Review Office.

On October 18, 2013, Review Office confirmed that the worker was not entitled to an additional ILA based on the whole of the evidence. Review Office noted that although the worker had restrictions, the nature of his compensable injury and associated abilities/restrictions did not fall within the category of a severely injured worker. Although the worker had ongoing mental health issues, there was insufficient evidence to indicate that this in itself, would prevent him from conducting activities covered by the WCB under the ILA.

Review Office concluded that the worker met the criteria to be considered an injured worker and he did not meet the criteria to be considered a severely injured worker under WCB policy. There were no provisions in the Act for the continuance of an ILA beyond six months for someone classified as an injured worker. On March 21, 2014, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

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.

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 to supporting workers’ participation in daily workplace and personal activities after an accident. The panel notes that as the initial decision on this claim was made prior to February 28, 2014, the appeal is dealt with under Policy 44.120.30.01.

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
  

Worker's Position

The worker was represented by a worker advocate. In the worker's Appeal of Claim's Decision form the advocate noted:

"Claimant received ILA, near maximum level, for extended period with several extensions. Due to 2006 injury and pre-existing condition, unable to look after yard. Wife is disabled. Pre-existing policy not followed."
 

The panel notes that the advocate also provided the WCB with a "Sickness Certificate" dated November 21, 2013 from the worker's family physician which indicates that the worker is "not able to shovel snow or raking leaves."

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to an ILA beyond the 22 month period for which he has already received the allowance.  For the worker to be successul 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 "severly injured worker" and is therefore not entitled to any further independent living allowance.

The panel notes that the worker's accepted injury includes both physical and psychological elements.  He suffered a non-specific injury to his right arm, wrist and hand which was diagnosed as an injury to his cervical spine.  He also has a pain disorder.  He was awarded a permanent partial impairment for the combined injuries of 26 per cent.  In addition he has a significant pre-existing condition, degenerative disc disease of both cercial and lumbar areas.  The panel also notes that the PPI Examination Notes dated April 22, 2010 indicate that "[worker] has difficulties with all activities of daily living but is able to perform them slowly and with modifications."

The worker's permanent physical restrictions in March 2011 were noted to be:

• No work above shoulder height with right arm
• No lifting greater than 20 lbs
• No frequent push/pull greater than 15 lbs. with the right arm

The worker was considered fit to return to work at modified duties with restricted hours (4 hours per day 5 days per week), however, in 2012 the WCB determined that he was unable to return to work.

Pursuant to the Policy,"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."  Examples of the type of injuries that qualify workers as severely injured workers include major amputations, significant brain injuries, terminal illnesses, para/quadriplegia and significant loss of sight. 

File evidence demonstrates that the worker does not require "temporary or permanent assistance with communication, mobility or self-care as a result of the workplace accident."  The worker is able to communicate, is mobile and is able to care for himself.

Upon considering the nature of the worker's injury, his functionality and restrictions, the panel finds, on a balance of probabilities, that the worker cannot be classified a "severely injured worker" under the policy and is not entitled to an independent living allowances beyond  the initial 6 month period. The extensions do not appear to be based upon the Policy. There is no further entitlement. 

The worker's representative noted in the Appeal of Claim's Decision form that "Pre-existing policy not followed."  The panel finds that the noted policy is not applicable to the determination of a an independent living allowance.

The worker’s appeal on 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 19th day of June, 2014