The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny legal fees associated with the Passing of Accounts and/or for real property associated with the committeeship. A file review was held on May 18, 2016 to consider the worker's appeal.

Issue

Whether or not responsibility for legal fees for the Passing of Accounts and/or for real property associated with committeeship for the worker should be accepted.

Decision

That responsibility for legal fees for the Passing of Accounts and/or for real property associated with committeeship for the worker should be accepted.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB related to a motor vehicle accident that occurred on September 6, 2012 during the course of his employment as a semi-truck driver. File records show that the worker suffered various injuries from the accident which included a severe traumatic brain injury. In December 2012, the worker's spouse was granted committeeship of both property and personal care of the worker by The Court of Queen's Bench of Manitoba.

On February 17, 2016, Compensation Services wrote the Worker Advisor Office to advise that the WCB would no longer cover the costs for the ongoing committee fees. The case manager stated:

As previously outlined in my decision letters provided on July 6, 2015, October 20, 2014 and April 23, 2014, I am unable to accept ongoing responsibility for costs related to the committee fees. As per Policy 44.120.30 Support for Daily Living, no section of the Workers Compensation Act (WCA) gives the WCB the authority to make expenditures for or on behalf of someone other than the injured worker. In other words, the WCB does not have the authority to make expenditures from the accident fund to provide assistance to the spouse, common-law partner, parent or other family member of the injured worker. Expenditures for goods or services to or for anyone other than the injured worker are not permitted by the WCA.

On February 26, 2016, the Worker Advisor Office asked Review Office to reconsider the decision dated February 17, 2016. The worker advisor stated, in part:

In our view, the WCB is refusing responsibility for ongoing legal fees on the basis they are being paid to [the worker's spouse]. We submit that the contrary is true; it is [the worker] that is incurring these expenses, as the Order clearly states that the fees are incurred by the committeeship. [The worker's spouse] manages the committeeship on behalf of the worker, acting as the worker. If the WCB pays the fees incurred by the committeeship, they are in fact compensating [the worker] because they are legally one in the same. Since the WCB would be compensating [the worker] and not his spouse, the above rationale used by Compensation Services is erroneous.

We submit that the WCB should be reimbursing [the worker] for these fees as they are incurred as the direct result of the compensable injury; if there had been no compensable injury, there would be no committeeship. Ultimately, who is actually compensated for these expenses is arbitrary. The fact remains that these expenses exist only due to a workplace injury and are solely the responsibility of the WCB. Therefore, we submit that [the worker] should not be responsible for paying the expenses associated with his committeeship, and that said expenses are the responsibility of the WCB.

On March 24, 2016, Review Office determined that the legal fees will not be accepted for Passing of Accounts or for real property associated with a committeeship for the worker.

Review Office noted that the WCB, in error, entered into an agreement with the spouse's lawyer to accept the legal costs involved in filing the mandated paper work (Passing of Accounts) in the courts and additional costs were provided to attend the court on her behalf (to vary the Committeeship Order). Upon realizing the error, the Compensation Services Director's decision to increase the amount towards legal expenses was made in good faith to allow the spouse to make other arrangements due to the erroneous decision. Legal fees were accepted until the Retainer Agreement was terminated by the WCB in July 2015.

Review Office indicated that the Act does not give the WCB authority to pay for legal expenses to pass accounts or for real property but does give authority to pay benefits only to a worker, not to a person who is appointed to make decisions for a worker who has been found to be mentally incapable of managing his own affairs or a dependent of a deceased worker (which is not the circumstances here). A committeeship (the spouse) was not one and the same as the worker, as suggested by the worker advisor. They are separate. These were her fees as her responsibility for carrying out the duties as required by the court.

Review Office found that Board policy 44.120.30 Support for Daily Living was not applicable to this case. It found that the legal fees for disbursement (charges for photocopying, administration and filing legal documents in court, faxing, courier services, etc.) for the purposes of Passing of Accounts was not a direct result of the worker's injuries.

Review Office concluded that legal fees associated with the committeeship's Passing of Accounts to be paid to a law firm of $2,097.20) and for real property (to be paid to the Public Guardian and Trustee of Manitoba, of $2,291.62) belonged to the spouse and not the worker.

On March 30, 2016, the worker advisor appealed Review Office decision to the Appeal Commission and file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act of Manitoba (the "Act"), any supporting regulation and policies enacted by the WCB Board of Directors.

The Act provides that the WCB can provide medical aid to workers. Subsection 27(1) states "The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident." Subsection 1(1) of the Act defines medical aid as including a broad range of services and equipment. Paragraph (f) of the definition states "any other goods and services authorized by the board."

Subsection 27(20) of the Act states:

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.

Pursuant to the above statutory provisions, the Board of Directors established WCB Policy 44.120.30, Support for Daily Living. The policy purpose notes that:

This policy outlines the general criteria for providing injured workers with assistance to engage in the activities required for daily living and summarizes the forms of assistance the WCB may provide.

The policy identifies the forms of assistance that can be provided to and for the benefit of injured workers. Paragraph 7 of the Policy addresses exceptional circumstances not noted in the policy. It states

7. Exceptional Circumstances

In exceptional circumstances the WCB may provide assistance beyond what is outlined in this policy. This includes but is not limited to situations where a worker has a severe and permanent injury, such as paraplegia / quadriplegia, a significant brain injury, serious mental health difficulties, major limb amputations, or a similar injury that necessitates special assistance to reduce the effects of the handicap. All such assistance is provided on a case-by-case basis with the approval of the Director.

This appeal deals with the payment for services provided to the committee of the estate of the injured worker. The committee of the worker's estate is asking that the WCB pay legal costs incurred by the committee in administering the estate of the injured worker.

Worker's Position

The worker's legal representative was represented by a worker advisor. The worker advisor provided a written submission. The worker advisor outlined that the worker is a 33 year old truck driver who was involved in a motor vehicle accident on September 6, 2012, resulting in a severe brain injury. The worker lives in a facility and requires 24 hour personal care. In addition, due to the significant injuries sustained as a result of the accident, the worker requires a committeeship to manage the worker's affairs. The worker's wife has been appointed by the court to serve as his committee.

The worker advisor noted that, on an annual basis, the committee must attend at court for the Passing of Accounts. The committee has engaged legal counsel to assist with this legal obligation. The annual fees are estimated to being in the range of $3,000.00.

The worker advisor submitted that but for the accident, the worker would not require a court appointed committeeship to manage his affairs. It submitted that subsection 27(20) of the Act allowed for the WCB to provide support beyond wage loss and medical aid benefits. The worker advisor submitted that Policy 44.120.30, Support for Daily Living, affirms the WCB's authority to compensate for expenses related to the worker's committeeship. The worker advisor submitted that the legal fees incurred by the worker would most certainly be considered necessary for the activities of his daily living.

Analysis

The worker sustained a serious brain injury and is not competent to administer his own estate. The worker's wife has been appointed the committee of the worker's estate and must by Order of the Queen's Bench, on an annual basis, provide a report to the court accounting for expenditures from the worker's estate. While the WCB initially paid the fees for the annual passing of accounts, it changed its position and concluded that it has no authority to pay legal fees for this purpose.

This is an appeal by the committee of the estate of the injured work for payment of legal costs in administering the estate of the injured worker. For the appeal to be approved, the panel must find that the WCB has the authority to pay legal fees related to the worker's estate and that this is an appropriate case to authorize payment. The panel was able to find make this finding.

The panel finds there is no expicit bar in the Act to the payment of legal fees for the purposes of the Act. More specifically, the panel notes that medical aid is defined to include "(f) any other goods and services authorized by the board". Furthermore, the panel notes there are other situations where the WCB pays legal fees incurred on behalf of an injured worker. For example the WCB may pay legal fees related to the sale and acquisition of a residence where the worker is being relocated.

The panel recognizes that for the payment of legal fees to be authorized, legal fees must be incurred for a purpose consistent with the purpose of the Act. In this case the action, Passing of Accounts, is required so the family of a severely injured worker can legally access the wage loss benefits which the board is paying to his estate. In the panel's view, this is a legal hurdle with associated legal costs, that the family must undertake that is specifically caused by the seriousness of the worker's cognitive disability that resulted from the compensable injury. The cost of this process would not typically be borne by other injured workers.

The panel notes and agreed with the legal representative of the committee who advised "that typically with committeeship, the money for the worker is separated and the person who has the committeeship is unable to spend any monies except on the individual. Because of the dynamics of this situation - [worker] was the 'breadwinner' while [wife] is the stay at home mom, there are complications in that the court does not allow [wife] to spend any monies on herself and she has to clarify every penny spent on each child." The legal representative advised that this could result in the wife being forced to sell the jointly owned home to put one half the value in an account for the worker and "not allow her to access any monies - essentially leaving her destitute."

The panel finds that the worker's committee is entitled to be reimbursed for legal fees paid to legal counsel, in such amount as is set out in the order by the Master, from time to time.

The appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of June, 2016