The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB")regarding his entitlement to an Independent Living Allowance for snow removal,seasonal yard work and house maintenance and repairs beyond a certain timeperiod.  A file review was held onOctober 15, 2015 to consider the worker's appeal.

Issue

Whether or not the worker's snow removal allowance should have been discontinued in October 2009;

Whether or not the worker is entitled to a retroactive independent living allowance to February 28, 2014 for seasonal yard work; and

Whether or not the worker is entitled to a retroactive independent living allowance to February 28, 2014 for house maintenance and repairs.

Decision

That the worker's snow removal allowance should have been discontinued in October 2009;

That the worker is not entitled to a retroactive independent living allowance to February 28, 2014 for seasonal yard work; and

That the worker is not entitled to a retroactive independent living allowance to February 28, 2014 for house maintenance and repairs.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB resulting from a work-related accident that occurred in 1986. File records show that the worker was diagnosed with an organic brain injury and permanent low back pain resulting from the accident. The worker was also deemed unemployable by the WCB.

File records show that the worker was provided with compensation benefits from the WCB which included an independent living allowance ("ILA") for a period of six months in relation to snow clearing. By letter dated October 21, 2009, the worker was advised that:

As your lower back is considered compensable and the need for your ILA is derived from your lower back injury your total entitlement period would be six months. You received 5 months of entitlement under the ILA policy last winter, the remaining month will now be paid out to aid in your snow clearing this coming season.

On September 17, 2010, the worker disagreed with the above decision and an appeal was filed with Review Office.

By letter dated November 24, 2010, Review Office advised the worker that he was only entitled to an ILA for a period of six months as outlined in WCB policy 44.120.30, Support for Daily Living. As he had already received an ILA for six months, there was no further entitlement to an ILA.

On December 15, 2010, the worker filed an appeal with the Appeal Commission regarding Review Office's decision of November 24, 2010. As the worker was appealing other decisions made on his WCB claim, it was agreed by the worker and the Appeal Commission that his appeal regarding entitlement to a further ILA would be placed on hold until further notice.

On January 28, 2013, the Appeal Commission's Registrar wrote the worker in response to his letters dated January 16 and 18, 2013. Regarding the issue: "Whether or not the worker is a severely injured worker under WCB policy 44.120.30, Support for Daily Living, and entitled to additional Independent Living Allowance", the Registrar stated in part:

You disagree with "additional" being used. You state separate issues need to be set up for:

· snow removal allowance

· house maintenance and repairs

· seasonal yard work

An independent living allowance is explained in WCB policy 44.120.30, Support for Daily Living. The policy refers to "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.)." All of the specific items you list are included under the general term independent living allowance and would be dealt with by the issue as listed. However, in order to move your appeal forward we can replace the listed issue with the following:

Whether or not the worker's snow removal allowance should have been discontinued in October 2009;

Whether or not the worker is entitled to an independent living allowance for house maintenance and repairs; and

Whether or not the worker is entitled to an independent living allowance for seasonal yard work.

On February 5, 2013, the worker agreed to the issues outlined on January 28, 2013.

On November 20, 2014, a WCB case manager advised the worker that based on the Review Office decision from November 25, 2010 on the ILA, she was unable to consider his request for retroactive pay between 2008 to October 2009 as this had to be appealed through the Appeal Commission.

In a memorandum to file dated December 23, 2014, a WCB case manager stated that the worker was having increased difficulty maintaining his lawn and snow removal and that medical information on file supported that he was entitled to retroactive payment for his ILA to March 1, 2014 when the new policy came into effect. The ILA amount was $125.00 per month based on his residence at the time of injury.

On January 21, 2015, the WCB case manager confirmed to the worker that he was eligible to receive an ILA retroactive to March 1, 2014 in the amount of $125.00 per month.

On June 23, 2015, the worker was advised by the Appeal Commission that a file review was scheduled for October 15, 2015 to address the issues related to the discontinuation of snow removal allowance in October 2009 and whether he was entitled to independent living allowance for seasonal yard work and for house maintenance and repairs retroactive to February 28, 2014.

On October 15, 2015, a file review was held at the Appeal Commission at which time the appeal panel considered further information provided by the worker and a submission made by the employer's representative in relation to the issues under appeal.

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.

As noted in the background, the issues in this appeal are stated as:

1. Whether or not the worker's snow removal allowance should have been discontinued in October 2009.
2. Whether or not the worker is entitled to a retroactive ILA to February 28, 2014 for seasonal yard work.
3. Whether or not the worker is entitled to a retroactive ILA to February 28, 2014 for house maintenance and repairs.

Subsection 27(20) of the Act is relevant to this appeal. It 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 Board of Directors 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."

Section A of the Policy defines "injured workers" and "severely injured workers" as follows:

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:

o Major limb amputations;

o Significant brain injuries;

o Severe multiple fractures;

o Significant ongoing mental health difficulties;

o The final stages of a terminal occupational illness;

o Paraplegia/quadriplegia;

o Severe respiratory condition;

o Significant sight impairment; or

o Wheelchair confinement

Section D of the policy deals with Independent Living and provides:

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 six months and at a level established by the WCB if

the following conditions are met:

o The worker does not have any family resources to provide the service; and,

o Medical evidence shows that it is unreasonable for the injured worker to perform day-to-day maintenance or housekeeping tasks.

4. Arrangements Workers are expected to make their own arrangements to obtain the services that will enhance independent living; however, in the event that private arrangements cannot be made, the WCB may contact bonded service providers.

Worker's Position

The worker was self-represented. He provided written submissions for consideration by the panel.

The worker disagreed with the Review Office decision of November 24, 2010. He submitted that he was a "severely injured worker" for the purposes of the Policy and that his benefits should not be limited to the 6 month period that are paid to "injured workers". He notes that he has sustained a serious head and back injury.

With respect to the first issue, the worker asked that the panel find that the snow removal allowance should not have been discontinued in October 2009 and should have been continued thereafter.

With respect to the second and third issues, the worker asked that these benefits be paid retroactively, up to February 28, 2014.

Employer Position

The employer was represented by its compensation coordinator. The compensation coordinator submitted, in part, that the Board Policy in effect at that point in time provided for 6 months of ILA which resulted in discontinuance in October 2009. He submitted that the ILA was properly discontinued and the worker was not entitled to further benefits.

The employer representative noted that the policy has been amended and that the worker has been receiving benefits pursuant to the new policy.

Analysis

While there were three issues before the Appeal Commission, the panel finds that all three issues are dependent upon the interpretation and application of Policy 44.120.30.01. The central question to be determined is whether the worker is a "severely injured worker" for the purpose of section D of the policy.

The worker asserts that he is a "severely injured worker" and is entitled to an ILA under section D of the policy and that such allowance should not be limited to the 6 month period provided to "injured workers".

The panel notes that the worker suffered multiple injuries in his February 7, 1986 workplace accident including head trauma, fractured ribs and injury to his low back. The most serious injury was noted to be a head injury resulting in a diagnosis of Organic Personality Disorder. In September 2009, he was assessed with a total PPI rating of 31% which included 17.5 % for his loss of range of motion in his back.

The panel has considered the definition of "severely injured worker". We note that the examples provided in the policy includes workers who experience significant brain injuries. We also note that the policy states 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. The policy refers to an increased risk if the day-to-day maintenance and housekeeping of the worker's residence is not kept up.

Pursuant to the policy, the panel must determine whether the workplace injury renders him a "severely injured worker" for the purpose of requiring an "independent living allowance."

We have considered the medical and other evidence on file during the period in question.

We note the opinion of the WCB rehabilitation specialist set-out in a claim note on the worker's file dated October 20, 2009. The rehabilitation specialist commented that:

I am in agreement with the designation of seriously injured as a result of the accident, however, if there are other physical conditions that do not fall into this category, one could treat that as an injured worker and provide a 6 month allowance. We always look at needs and capabilities, and as long as the brain injury does not affect, for the most part, his day to day function (drive, deal with money, shop, etc including that judgment has not been impaired to the point where he cannot function safely), I would think that, from the back injury, given his back restrictions, that he would have been entitled to 6 month worth of an ILA.

The panel also notes the comments included in the June 30, 2009 report of the WCB psychiatric consultant:

[Worker] lives alone in his cottage in [name of community] and has done so since last year. He provides all of his own self care and does all his own maintenance of his property, as well as his own shopping and personal care. He has not had any formal supervision of financial or decision making aspects and, therefore, is not considered to be incompetent to manage his own affairs. It is noted that he has made financially advantageous decisions regarding his income for himself.

The information indicates that the worker was able to drive a vehicle, perform household chores, and function on a day-to-day basis. Given the above information, the panel finds that the worker's injuries did not place him at risk and did not prevent him from performing day-to-day maintenance and housekeeping of his residence. In making this decision, the panel therefore finds, that the worker's injuries, including his head injury, did not render him to be a "severely injured worker" for the purpose of Section D of the policy.

This decision is not to be interpreted as lessening the extent of the worker's injuries and the impact on his life. Rather it is limited to a determination that the worker was not a "severely injured worker" for the purposes of Section D of the policy for the noted period.

The panel notes that more recent information on the worker's file indicates that the worker's condition has deteriorated and that increased services are now being provided by the WCB. The information regarding the worker's recent decline in medical status does not apply to the period in question in this appeal.

The answer to each of the issues raised by the worker is as follows:

1. Whether the worker's snow removal allowance should have been discontinued in October 2009?

The worker's snow removal allowance was correctly discontinued in October 2009.

2. Whether the worker is entitled to a retroactive independent living allowance to February 28, 2014 for seasonal yard work?

The worker is not entitled to a retroactive independent living allowance to February 28, 2014 for seasonal yard work.

3. Whether the worker is entitled to a retroactive independent living allowance to February 28, 2014 for house maintenance and repairs?

The worker is not entitled to a retroactive independent living allowance to February 28, 2014 for house maintenance and repairs.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of November, 2015