The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no provision in The Workers Compensation Act (the "Act") or Board policy to provide him with compensation related to the reported costs/losses associated with his residence. A hearing was held on September 25, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to coverage for reported costs/losses associated with his residence.

Decision

That the worker is not entitled to coverage for reported costs/losses associated with his residence.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries he sustained in a work-related accident on November 18, 2009. File records showed that the worker was diagnosed with a concussion, multiple vertebrae fracture, shoulder and back strain/sprain and a right hand contusion resulting from the accident. The worker had also been diagnosed with post concussive syndrome and an adjustment disorder. At the time of his compensable accident, the worker was in the process of building a new personal residence.

Subsequent file records showed that the WCB provided the worker with various benefits in relation to the construction of his new residence. This included hotel accommodations, weekly meal allowances and labour costs to support the construction of the worker's home as the worker was unable to do so himself based on the nature of his compensable back condition.

On March 10, 2014, the worker met with a WCB senior case manager to discuss his claim. The worker's position was that the WCB should compensate him for home building costs that he would not have incurred if not for his compensable injury. The worker estimated the costs to be approximately $75,000.00.

By letter dated March 11, 2014, the WCB case manager advised the worker that the WCB was unable to provide him with additional monies in relation to his home building costs/losses in 2010 as the WCB did not have specific legislation or policy provisions to compensate an injured worker for this type of loss. The case manager stated to the worker that his previous decision to pay building costs in 2010 under subsection 27(20) of the Act had been made in error. The worker disagreed with the decision and an appeal was filed with Review Office.

On June 2, 2014, Review Office confirmed that there was no entitlement to coverage for reported costs/losses associated with the worker's residence. Review Office noted that the worker had received financial assistance from the WCB in relation to the construction of his home on previous occasions based on subsection 27(20) of the Act. It stated that based on the circumstances of the worker's claim, the financial assistance already provided by WCB fell outside of the intent/scope of compensation payable to a worker.

Review Office indicated that Board policy 44.120.30.01, Support for Daily Living and Board policy 44.120.10 Medical Aid were not applicable to the worker's case. Review Office indicated that the file evidence did not support the worker's home required modifications to facilitate access nor did the worker have to relocate due to his compensable injuries. It felt that the general construction of a regular residence did not fall within the parameters of medical aid or support for daily living activities.

Review Office acknowledged that the worker's compensable injuries had impacted the construction of his residence as the worker planned to perform some of the labour tasks himself to reduce the costs. Review Office indicated, however, that there was no entitlement to coverage for this type of reported costs/losses. The worker disagreed with Review Office and an appeal was filed with the Appeal Commission.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by 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.

Section 37 of the Act outlines the types of compensation payable to workers as follows:

Compensation Payable

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in

accordance with section 39

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

Worker's position:

The worker was self-represented in his appeal. The worker clarified at the hearing that the basis for his claim was that the money he used to finish his residence (which was an elaborate show home) was the money he had saved over five years while working as a trucker. Because he used the money to complete the residence, he no longer had funds in his company to be purchasing and developing more lots. He stated that: "It's now that I did that, I don't have the money to keep this company going and that's where I'm out."

The worker clarified that the amount he was asking for was $125,000. He felt that this was the amount that he was out and represented the amount that he should have had to buy more lots and to keep building. At the time of the hearing, the residence was listed for sale on the multiple listing service.

Analysis:

The issue before the panel is whether or not the worker is entitled to coverage for reported costs/losses associated with his residence. In order for the worker's appeal to succeed, the panel must find that there is authority under either the Act or WCB Policy for the granting of such coverage. We are unable to make that finding.

The panel has given consideration to the worker's request, but there is simply no provision in the Act to grant the type of benefits for which he is asking.

Section 37 of the Act outlines the three categories of compensation payable to workers: medical aid, an impairment award, and wage loss benefits for any loss of earning capacity. It is clear that the benefits the worker is requesting cannot be considered to be either an impairment award or wage loss benefits.

The panel has considered whether there could be any entitlement pursuant to subsection 27(20) regarding academic, vocational and rehabilitative assistance. Subsection 27(20) allows for benefits on a discretionary basis and is the authority under which the WCB previously provided assistance to the worker for construction of his residence. The panel is of the view that subsection 27(20) should not be used to provide compensation to the worker for the funds which he no longer had to buy more properties. We feel that these amounts are largely speculative and are of an entirely different nature than any of the other types of compensation provided under the Act. We cannot rationalize providing any benefits to the worker under this subsection.

At the hearing, the worker made reference several times to section 61 of the Act. Section 61 provides as follows:

Protection from Liability

61 No action or proceeding may be brought against the board, a member of the Board of Directors, an employee or agent of the board, an appeal commissioner, a member of a medical review panel, the Fair Practices Advocate or a worker advisor acting under the authority of this Act for anything done or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act or its regulations; or

(b) in the exercise or intended exercise of a power under this Act or its regulations;

unless the person was acting in bad faith.

We do not find any authority under section 61 to grant the worker the coverage he is requesting. Section 61 does not create any entitlement to benefits.

Overall, the panel is unable to find any justification for granting the worker the compensation he is requesting. On the merits and justice of the case, the panel notes that the worker has already received a considerable amount of financial assistance in relation to the construction of his residence which in hindsight, the WCB states that it ought not to have paid. We find that the worker is not entitled to any further benefits.

As a final note, at the hearing, the worker requested that in its written decision, the panel make a suggestion or recommendation that the worker be entitled to civil damages or other relief as against the WCB. The issue of the worker's entitlement to civil damages against the WCB and/or any other third parties is entirely outside the Appeal Commission's jurisdiction and we cannot make comment on the worker's entitlement in this regard.

It is therefore the panel's decision that the worker is not entitled to coverage for reported costs/losses associated with his residence. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of November, 2014