Decision #120/14 - Type: Workers Compensation
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 based on WCB policy. A hearing was held via teleconference on September 4, 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 right shoulder injury that occurred at work on November 26, 1973. File records showed that the worker underwent surgery to his right shoulder on a number of occasions, the last one being on May 31, 2013. The post-operative diagnosis was:
Massive non-fixable tear of the suprascapularis tendon with retraction beyond the glenoid rim, severe atrophy of the supraspinatus and infraspinatus tendon with near rupture of the supraspinatus tendon. Biceps tendon tenodesis failure, osteoarthritis of the glenohumeral joint of second degree over four.
File records show that the WCB provided the worker with an Independent Living Allowance ("ILA") at varying points in time during his claim to assist with snow clearing and lawn cutting due to the nature of his right shoulder condition.
In a letter dated December 30, 2013, the worker was advised that the WCB was unable to accept ongoing responsibility for an ILA. The case manager noted that the worker had been given an ILA to assist with the regular maintenance of his grounds after his May 2013 surgery.
The worker had been issued the maximum amount ($274 per month/$280 per month effective October 1, 2013) for the maximum duration of 6 months (June - November). The worker was advised that the monthly amount was established each year, but the duration of entitlement depended on the severity of his injury according to WCB policy. The worker was advised that based on the policy, he was considered an injured worker rather than a seriously injured worker, and had been issued the maximum ILA entitlement.
On April 8, 2014, the worker appealed the December 30, 2013 decision to Review Office. Included with the submission was a letter from an orthopedic surgeon who stated:
He does suffer with a massive rupture in his rotator cuff that is creating a disability in regard to range of motion and strength and giving pain due to crepitus, indicating that his acromion is rubbing against the humeral head as per a large tear in his rotator cuff. This behaves like an osteoarthritis condition due to a torn rotator cuff/rotator cuff arthropathy.
This condition is not going to get better; it may get worse over time. The patient's symptoms are increasing, especially triggered by physical activities, such as removing snow at his home or doing activities of daily living.
As you know, he not only suffers with his right shoulder but also with his left. Permanent impairment for both shoulders. It is difficult to see this patient doing heavy cleanup around his home, such as shoveling snow.
In his appeal to Review Office, the worker indicated that he was in constant pain and his shoulder was getting worse. He said that snow removal was putting a strain onto his shoulder and that he had fallen off a ladder when removing snow from his rooftop. He could not operate a snow blower as it aggravated his shoulder condition.
On May 29, 2014, Review Office upheld the case manager's decision that the worker was not entitled to an additional ILA.
Review Office indicated that the medical information on file supported that the worker had a significant compensable injury and was unable to perform lawn maintenance and snow shoveling due to a combination of his compensable right shoulder injury and his multiple non-compensable medical issues. It was felt, however, that the worker's injuries fell short of being considered a severely injured worker.
Review Office noted that following his most recent compensable right shoulder surgery, the worker was paid ILA in 2013 for 6 months at the maximum allowable rate. The worker was also paid an ILA in 2001, 2002, 2004 and 2005. This exceeded the maximum of 6 months allowable under the policy given the worker's status as an "injured" worker under the policy.
There was no provision within the policy to provide the worker with an additional ILA. On June 15, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held via teleconference.
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 a 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 participated via teleconference. The worker's Appeal of Claims Decision form indicated as follows:
I am unable to perform normal duties around my home and property, snow removal, lawn care, painting. I'm in constant pain, I can't use my arm above sholder (sic) level. The shoulder is bone on bone. The doctor told me more surgery will not help. The next thing is a full shoulder replacement.
I was refused the ILA. I was given the ILA in 2001-2003, reinstated Nov 2004 - Jan 2005. The shoulder is much worse now.
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.
It is evident that as a result of the worker's right shoulder injury and subsequent surgeries, he is left with significant impairment which affects his ability to perform home maintenance activities such as snow removal. This is particularly so given the severe weather conditions in the location where the worker now resides.
The worker's residual disability resulting from the workplace injury is not in question. The panel, however, 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.
- 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.
In the panel's opinion, the worker does not qualify as a severely injured worker. While his shoulder condition is significant, we do not view his injuries as being similar in nature to the other examples of severely injured workers, such as having an amputation or being confined to a wheelchair. Indeed, at the hearing, the worker acknowledged that he would not likely be considered a severely injured worker.
In the absence of any authority under the Policy for entitlement to a further allowance, the panel therefore finds that the worker is not entitled to an additional ILA. The worker's appeal is dismissed.
- Significant brain injuries;
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.
Over the course of his lengthy WCB claim, the worker has received well in excess of the 6 month maximum ILA. Full entitlement under the general rule has therefore already been granted.
The panel has given consideration as to whether or not the worker's situation could be considered an exceptional case. Unfortunately, we are unable to identify any sufficiently 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:
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 12th day of September, 2014