The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") todeny responsibility for the cost of purchasing his van.  A file review was held on January 7,2016 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for thecost of purchasing the worker's van.

Decision

That responsibility should not be accepted for the cost ofpurchasing the worker's van.

Decision: Unanimous

Background

On October 4, 1993, the worker injured his left foot during the course of his employment. His claim for compensation was accepted and various types of compensation benefits were provided. Medical reports show that the worker developed secondary conditions, including vestibular/bilateral labyrinthine dysfunction due to medication use, which were accepted as a WCB responsibility.

In a letter to the WCB dated March 9, 2009, the worker's union representative sought support for the purchase of a van, stating in part:

(The worker) advises that he first purchased a van in 1999, two (2) years after he sustained his compensable injury. He advises the van was purchased because his wife was physically unable to disassemble his scooter and put it in the trunk of the car. It is also my understanding that the WCB did pay for a lift device for this van, however, did not assist (the worker) with the cost of the van. Since 1999, (the worker) has purchased another van, a 2007 Chevrolet Uplander. He also made the necessary arrangements to have the old wheelchair lift installed on the new vehicle. The purchase of the 2007 van occurred after (the worker's) wheelchair was purchased in April of 2005.

We are requesting that the vehicle committee review and support the purchase of this van....

In a decision letter dated May 22, 2009, a WCB sector manager stated:

In the WCB Home/Vehicle Committee meeting of March 24/09, it was found that the current van is not being used for transportation to and from work by the worker, as other transportation services have been arranged by the case manager.

(The worker) continues to be independent in his transfers and therefore, in accordance with the applicable policy, the committee has decided he is not eligible for assistance with the purchase of a new vehicle. The WCB does have an ongoing responsibility for the mechanized lift that he uses to raise the wheelchair into the back of the van.

On August 19, 2009, the union representative appealed the sector manager's decision to Review Office.

In a decision dated November 13, 2009, Review Office determined that the cost of the worker's van should not be covered by the WCB. Review Office stated that WCB Policy 44.120.30, and specifically section G of that Policy, applied. Review Office noted that the worker needed a van to transport his wheelchair, and that given its weight, a lift was required to move the wheelchair in and out of the van. The worker did not ride in his wheelchair when it was in the van. The worker was able to transfer himself into the passenger seat. (He could not drive.)

Review Office concluded that the worker did not require a "specialized vehicle" as contemplated by the policy, and that specialized vehicles are ones that are equipped to accommodate a worker who travels in a wheelchair in them.

Review Office stated that Policy 44.120.30 did not contemplate the WCB covering the full cost of a vehicle for any worker. At best, it covered the incremental cost of a vehicle over several options, including "the amount the severely injured worker would have spent on a vehicle had the accident never happened."

On May 8, 2015, the worker's union representative appealed Review Office's decision to the Appeal Commission.

On December 8, 2015, the union representative provided the Appeal Commission with a submission in support of their position that responsibility should be accepted for the cost of the worker's van. On December 30, 2015, the employer's representative provided the Appeal Commission with the employer's submission. On January 7, 2016, a file review was held to consider the worker's appeal.

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 WCB's Board of Directors.

The decision which is under appeal was made prior to February 28, 2014. The applicable policy is therefore WCB Policy 44.120.30.01, Support for Daily Living (the "Policy").

The purpose of the Policy is stated as follows:

This policy co-ordinates the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products.

Section A of the Policy defines a "severely injured worker" as 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, paraplegia/quadriplegia, significant sight impairment or wheelchair confinement.

Section G of the Policy, Vehicle Modifications, states in part that:

The WCB may provide support for vehicle modifications that improve a worker's ability to travel on roads and highways. In certain cases, extensive modifications to the vehicle may be required to accommodate power wheelchairs. In some cases, it may not be cost effective to modify the worker's existing vehicle due to its age, condition or type of vehicle. Accordingly, the WCB may provide financial support for a replacement vehicle.

With respect to eligibility, Section G provides:

If a worker requires a modified vehicle to provide safe transportation, the WCB may pay the costs associated with the vehicle modifications…

In certain circumstances, the WCB may pay for a specialized vehicle that meets, but does not exceed, the reasonable needs of a severely injured worker for safe travel.

"Specialized" is defined as follows:

"Specialized" refers to extensive modifications to a vehicle in order to accommodate electric wheel chairs required by severely injured or quadriplegic persons. Examples include roof extensions, elevator devices, beds, heaters, and emergency communication devices.

Section G provides that the vehicle modifications paid for will be based on the worker's particular circumstances and the age and condition of the vehicle. The amount paid depends on whether the person is an injured worker or a severely injured worker, and the duration the modification will be required, and will be determined in accordance with the criteria set out in that Section. With respect to severely injured workers, Section G c) of the Policy states in part:

IF vehicle modifications are required for:

□ a severely injured worker who is incapable of routinely completing a self-transfer from the wheelchair into the vehicle, and

□ the modifications will be a long term or permanent requirement due to the injuries caused by the accident

then the WCB may pay for the cost of necessary modifications to the severely injured worker's existing vehicle or provide sufficient funds for a specialized vehicle… (emphasis in original)

Worker's Position

The worker's position, as set out in his appeal form filed May 8, 2015, is that the Act and policies of the WCB have not been correctly applied.

In a submission to the Review Office dated August 19, 2009, the worker's union representative had relied on the following factors in support of the worker's appeal:

• The worker was considered a severely injured worker in accordance with WCB policy since he was confined to a wheelchair.
• The worker required a van and a mechanical wheelchair lift for transportation purposes. The van he purchased minimized the impact of the workplace injury.
• The WCB had supported and accepted responsibility for a mechanical lift the worker used to raise the wheelchair into the back of the van, but had not supported the cost of the purchase of the van.
• The WCB's decision not to support the purchase of the van was not consistent with WCB Policy 44.120.30, Support for Daily Living. The policy did not stipulate that the vehicle must be used for work purposes. The worker required transport to engage in activities other than work.

In a submission to the Appeal Commission dated December 8, 2015, the worker's union representative included pictures of the 2007 van "purchased to transport the worker's scooter and power chairs that are necessary for his work related injury." It was noted that the WCB ordered the lift for the van and had it installed, and also paid for the worker's power chair and the scooter which is loaded and transported in the van. It was further noted that the 2 rear seats which came with the van had to be removed to make room for the lift, the scooter and the power chair. The trim had to be removed so the power chair and scooter could be loaded. The 2 rear seats and trim had been in the worker's basement since then, and had never been used.

Employer's Position

The employer provided a written submission, in which it agreed with the Review Office decision of November 30, 2009.

The employer noted that Section B of the Policy, Eligibility, provides that in each case, the WCB examines the evidence about the worker's injury in order to determine whether, in its opinion, the worker reasonably needs the support, service or product. It was submitted that specific to Section G, eligibility with respect to vehicle modifications requires that all modifications be approved by the WCB prior to consideration.

The employer questioned whether the worker has actually been considered to be, or meets the definition of, a "severely injured worker" for the purposes of Section G. It was submitted that Section G c) refers to a severely injured worker "who is incapable of routinely completing a self-transfer from the wheelchair into the vehicle", and the documentation shows that the worker continued to have the capacity to routinely complete a self-transfer into his vehicle both before and after the purchase of the van in October 2007. The employer pointed to information on file which, in its submission, indicated that the WCB did not actually consider the worker to be a severely injured worker. The employer submitted that even when the Home/Vehicle Committee met on March 24, 2009 to determine the worker's entitlement, it was unclear whether the committee considered him to be a severely injured worker, noting that it referred to him as a "seriously" injured worker.

The employer submitted that there was no reasonable explanation as to why the worker needed to replace his existing van when he purchased the 2007 van. The previous van used in trade appeared to have been a 2004 Chevrolet van with approximately 55,000 km on it. That van had already been modified with an appropriate lift which was accepted by the WCB. In May 2008, the worker told the case manager that he no longer had the 2004 van as it was coming off warranty and he traded it in for a new van. It appeared, therefore, that the only reason the worker decided to trade in his 2004 vehicle was because it was coming off warranty.

In the employer's view, it was difficult to accept that the worker went out on his own and purchased a new van without consulting with the WCB as to what responsibility the WCB might have. Section G c) stipulates that where the WCB is considering providing sufficient funds for a specialized vehicle, a cost benefit analysis must be conducted to determine whether the purchase of a vehicle is the most economical solution as compared to other options. It was submitted that even if the WCB were to contemplate the purchase of a specialized vehicle, the section lays out what its financial exposure would be, and there is nothing in the criteria which contemplates the WCB covering the full cost of a vehicle to a worker.

Analysis

For the worker's appeal to be successful, the panel must find that support for the cost of purchasing the worker's van is consistent with the requirements of the Act and policies established by the WCB Board of Directors. The panel is unable to make that finding.

It was argued on the worker's behalf that the worker was a "severely injured worker" who was confined to a wheelchair and required the van to transport his power wheelchair or scooter. The panel finds that the worker had already been considered to be a "severely injured worker" as defined by the Policy.

Section G c) of the Policy speaks to providing funds for purchasing a specialized vehicle. The panel is unable to find that the worker's circumstances fit within the criteria for eligibility for a specialized vehicle under the Policy. One of those criteria is that the worker is "incapable of routinely completing a self-transfer from the wheel chair into the vehicle." In this instance, the evidence indicates that at the time the van was purchased and thereafter, the worker would travel in the passenger seat of the vehicle and was able to transfer himself into and out of that seat.

The panel notes that the vehicle which the worker purchased was not a specialized vehicle. As he had previously done, the worker purchased a van which was then modified by installing a mechanized lift. The lift enabled the worker to transport his powered devices in the vehicle. The worker did not remain in his mobility devices while travelling in the van. Rather, as indicated previously, he was able to, and did, self-transfer into the passenger seat of the van.

The evidence shows, and the worker acknowledged, that the WCB supported and accepted responsibility for the mechanized lift which he used to raise the powered devices into the back of the van. The panel notes that no other modifications or devices were identified as being required or reasonably required to improve the worker's ability to travel or meet his needs for safe travel.

The worker's submission of December 2015 refers to the van having been "purchased to transport the worker's scooter and power chairs that are necessary for his work related injury." The panel notes that there is nothing to indicate that the worker's previous vehicle no longer met his needs. The WCB had installed lifts in the worker's previous vehicle which had enabled him to transport his powered devices. There is no indication that the worker's condition or needs had changed such that the new vehicle or additional modifications were required. In any event, a mechanized lift was installed in the new van, and it was not suggested that any other modifications were required.

In the circumstances, the panel finds, on a balance of probabilities, that the worker's request for support for the cost of purchasing his van does not meet the requirements of the Policy. Accordingly, the panel finds that responsibility cannot be accepted for the cost of purchasing the worker's van.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 3rd day of March, 2016