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 additional independent living allowance for snow removal. A hearing was held on August 13, 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

On February 4, 2009, the worker injured his left leg in a work-related accident. The injury resulted in an open fracture of his left tibia/fibula. The claim for compensation was accepted and the worker received various types of benefits and services through the WCB which included an Independent Living Allowance ("ILA") to assist with snow removal and spring clean-up while he recovered from surgical procedures related to his left leg. This amounted to a total of 19 months of ILA between the period 2009 and 2011.

By letter dated October 4, 2012, the WCB advised the worker that he would not be provided with further ILA assistance as he had received in excess of what he was allowed for under WCB policy which was a maximum of 6 months.

On July 31, 2013, the worker underwent further surgery to debride and biopsy his left tibia. A left ankle arthroscopy with talar chondroplasty and debridement of the joint was also performed.

On February 13, 2014, the worker contacted the WCB to ascertain whether the WCB would cover the cost of snow clearing as he was unable to do so. On February 18, 2014, the WCB advised the worker that he was not entitled to further ILA as there were no new medical findings

to warrant a change to the decision dated October 4, 2012. On February 24, 2014 the worker appealed the decision to Review Office.

On April 17, 2014, Review Office determined that the worker was not entitled to an additional ILA. Review Office concluded that the worker did not meet the criteria required by the WCB to qualify as a severely injured worker but he did meet the criteria to be considered an injured worker.

Review Office noted from the file evidence that the worker was initially paid 7 months of ILA and that he received an additional 6 months of ILA for the fall and winter of 2010 and 2011, based on approval from the Director of Compensation Services. In total, the worker had received ILA coverage for 19 months. Review Office noted that WCB policy allowed for 6 months of ILA coverage given the worker's status as an injured worker. There was no provision within the policy to provide the worker with additional ILA. On April 24, 2014, the worker appealed the decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

WCB Policy 44.120.30, Support for Daily Living (the "Policy") provides guidance regarding the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident.

Worker’s Position

The worker was self-represented at the hearing and the services of an interpreter were provided. The worker's Appeal of Claims Decision form indicated that he wished to appeal the decision because he was not able to do snow removal or other activities due to his leg injury. The worker relied on a medical report dated January 30, 2014 from his treating surgeon which confirmed his severe left ankle injury and subsequent symptoms had left him with impairment such that he had lost the ability to stand for any significant period of time (approximately 15 minutes) and that he had also lost the ability to do a lot of regular activities of daily living, particularly those requiring standing such as shoveling snow in winter.

Employer’s Position

A compensation coordinator appeared on behalf of the employer. The employer acknowledged that the worker had suffered a fracture of his leg while at work, but stated that the Policy clearly limited ILA entitlement to 6 months for an injured worker. The employer's position was that the worker's injuries, while significant, were not sufficient to qualify him as a severely injured worker. As the worker did not meet the Policy, he was not entitled to an additional ILA.

Analysis

In order to find that the worker is entitled to an additional independent living allowance, the panel must find that the Act or WCB Policy provides authority for this type of compensation to be paid to the worker. We are not able to make that finding.

There is no doubt that the worker has suffered a significant injury which has left him with permanent impairment. The panel accepts the surgeon's report that the worker has lost the ability to stand for much longer than 15 minutes and that he is not able to perform some regular activities of daily living, including shoveling snow in winter. The worker's evidence at the hearing was that last winter, he had to pay other people to clear his snow for him. This is a household task which he can no longer perform.

The worker's residual disability resulting from the workplace injury is not in question. Unfortunately, however, the panel is bound to follow the Act and Policy. Part D of the Policy provides as follows:

3. Injured Workers

The WCB may provide injured workers support for independent living for a maximum of six 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.
  

The Policy clearly states that injured workers may receive support for independent living for a maximum of 6 months. This is the general rule. The worker has already received the 6 month maximum ILA.

In some exceptional cases, the Policy allows for additional support to be provided. Part B of the Policy provides as follows:

2. Exceptional Cases

Where unique circumstances arise, the worker may be eligible for additional or alternative support services or products as authorized by a WCB Director in accordance with the financial authority levels established by the WCB.

Additional support under the exceptional cases provision has already been given to the worker. In addition to the maximum 6 months, the worker has intermittently received an additional 13 months of ILA during the periods when he was recovering from his multiple surgeries.

At the hearing, the worker described his current condition. He stated that when the weather is nice, he is ok, but when it is cold, he has increased pain and he cannot even walk for 15 minutes. The scars around his ankle are sensitive to touch and if he moves too much, the ankle swells up. There are no further medical interventions currently being planned.

It would appear that the worker's condition is not in an acute injury phase. The panel finds that the worker is at a stage in his recovery where he is simply trying to manage his day-to-day life in view of his permanent impairments. This is not a unique circumstance which would allow the panel to find that the exceptional cases provision applies. The worker is therefore not entitled to an additional ILA under this part of the Policy.

The only remaining authority under the Policy which could potentially allow the panel to grant an additional ILA is if the worker were to be considered a severely injured worker. The Policy provides that: "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.


A severely injured worker is defined under the Policy as follows:

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.