The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny responsibility for the purchase of a tractor. A hearing was held on March 7, 2017 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the purchase of a tractor.

Decision

That responsibility should be accepted for the purchase of a tractor.

Background

On August 10, 2009, the worker was involved in a motor vehicle accident during the course of his employment as an electrician. His claim for compensation was accepted and various types of benefits were paid which included a 49% Permanent Partial Impairment ("PPI") award and an Independent Living Allowance ("ILA") of $125.00 per month to cover snow removal and lawn care.

In February 2016, a WCB case manager noted to the file that the worker requested the WCB to cover the costs associated with a tractor so he could do his own yard work. Following a discussion with the worker and review of all the file information, the case manager recommended that the worker be provided with a 2015 Tractor as "Cost savings would be approximately $30,000 or more in the years ahead of the ILA." The worker's request regarding the purchase of a tractor was also considered by the Sector Director. On February 29, 2016, the Sector Director stated:

My preference would be to continue the monthly allowance vs. purchasing equipment. Cost benefit analysis did not take into consideration cost of maintenance, repairs and replacement over time. If we have to replace the tractor every 10 years, there would be little in the way of savings. Psychologist has also indicated that his depression has worsened over time. If this continues or if [worker] becomes physically incapable of carrying out this work, for whatever reason, we would again have to fund a service provider despite paying for the tractor. I am not prepared to authorize the tractor for these reasons.

On March 2, 2016, Compensation Services wrote the worker to advise that the WCB was unable to support his request for a tractor in lieu of the monthly monies he received towards yard work. On March 10, 2016, the worker appealed the decision to Review Office. On May 26, 2016, the employer's representative indicated that they agreed with the decision for the reasons outlined by the Sector Director on February 29, 2016.

In a decision dated June 2, 2016, Review Office determined that there was no entitlement to funding for the purchase of a tractor. In response to the worker's offer to sign a waiver foregoing repair costs or future entitlement to an ILA, Review Office stated, in part, that a worker's inherent right to entitlements under The Workers Compensation Act (the "Act") is not something that could or should be waived. As such, the proposal was not viable. On July 17, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, the regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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 27(20) of the Act provides that the WCB may make such expenditures as it considers necessary or advisable to provide assistance to a worker for such period of time as the WCB determines where the worker "requires assistance to reduce and remove the effect of a handicap resulting from the injury" or "requires assistance in the activities of daily living" as a result of an accident.

WCB Policy 44.120.30, Support for Daily Living (the "Policy") outlines the general criteria for providing injured workers with assistance to engage in the activities for daily living and summarizes the forms of assistance the WCB may provide.

Under the heading "Forms of Assistance", the Policy provides, in part, as follows:

2. Independent Living

Assistance may be provided for services that allow an injured worker to live safely and independently in his or her home, including lawn care, snow shoveling, and other tasks that help meet this aim.

…

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.

Administrative Guidelines, which are set forth in the Policy, build upon the general criteria and parameters outlined in the Policy to provide more specific guidance on decision-making. With respect to the ILA, the Guidelines indicate that the level of assistance is based on grids developed by the WCB for this purpose, and that one of two methods is generally used for administering the assistance, based on whether the assistance is short-term or long-term. The Guidelines indicate that where assistance is long-term, an allowance is generally provided to the worker to pay providers.

With respect to exceptional circumstances, the Guidelines state, in part, as follows:

F. Exceptional Circumstances

Assistance beyond what is outlined in this policy may include support for specialty equipment or devices that facilitate the worker's adaptation to the permanent effects of the workplace injury. This includes assistance for hobbies and recreation.

Worker's Position

The worker was self-represented, and was accompanied at the hearing by his wife. The worker made a presentation and responded to questions from the panel.

The worker's position was that the purchase of a tractor would result in significant cost savings.

He has now purchased a tractor and been using it for the past year. It has worked well and brought him a great deal of happiness and satisfaction.

The worker stated that he did a lot of research and selected the tractor which was the best known and best suited for his needs. He purchased it in June 2016, and had the opportunity to use it through the summer and the winter. In that time, he put close to 30 hours on the tractor. His research indicated that with very hard commercial usage, this kind of tractor might have to be replaced after 2,000 hours. Under residential use, it could last up to 12,000 hours. The worker did not believe that he would ever have to replace the tractor, but even if he had to replace it, his calculations showed that there would be a considerable cost savings as compared to the monthly ILA payments.

The worked submitted that the maintenance on the tractor he had chosen was next to nothing. He had changed the oil already and had the tractor inspected and it was perfect. The worker stated that he looks after things and is mechanically inclined. He understands engines, how they should work and how to keep things working properly.

The worker understood that this was a costly item, but was confident that it would work. He paid approximately $8,000 for the tractor. He was so sure that this would work that he also bought the snow blower attachment, which cost approximately $3,500 more. The worker said that it had worked so well and done such a good job that his neighbours were envious. He had no issues with respect to snow clearing or grass cutting this past year.

The worker said that he had paid to have his grass cutting and snow clearing done for 9 years. He went through numerous companies and individuals, but there were always problems and it never worked properly. He recognized that finding someone who would do a better job was going to end up costing him money in addition to the ILA, and came up with the idea of the tractor as a solution to the problem.

The worker noted that his accident had left him with major impairments. Operating the tractor is something that he can do himself, and that has worked well for him and his family. It was documented by both his psychologist and his doctor that this was a perfect idea for him. He said that the tractor has brought him a great deal of satisfaction and happiness, and has enabled him to regain his passion for looking after his yard and landscaping.

Employer's Position

The employer was represented by an advocate and a Disability Management Analyst. The employer's position was that Review Office's determination that the worker was not entitled to funding for the purchase of a tractor was reasonable and appropriate.

The advocate noted that the Policy clearly says that assistance should compensate in the most cost-effective way possible for additional costs, but questioned whether that was in the best interests of the worker in this case. The worker had said that he would sign a waiver foregoing the costs of repair and would forego reinstatement of the monthly ILA. The advocate stated that the employer was not sure that this was in the best interests of the worker or consistent with the spirit of the Act, and noted that workers compensation is not a barter system.

The advocate submitted that the cost of the ILA over the years would likely be greater than the cost of a tractor, but the employer was looking at what was in the worker's best interests in the long run. If the worker's functional abilities deteriorated or his circumstances changed, he could sell the tractor he has purchased and recoup some of his costs, but the ILA would remain in place to obtain the services he required to live independently. It was submitted that although the Policy makes allowance for exceptional circumstances, the purpose of the ILA is really to provide assistance for snow removal and grass cutting, and in the employer's view, Review Office's decision was probably better for the worker in the long term.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the purchase of a tractor. For the appeal to be successful, the panel must find that support for the cost of purchasing a tractor is consistent with the requirements of the Act and Policy. The panel is able to make that finding, for the reasons that follow.

The Policy lists a number of general criteria which are applied in providing assistance under the Policy, including that the "assistance should compensate in the most cost-effective way possible for additional costs the worker incurs in engaging in the activities required for daily living that he/she engaged in prior to the injury, where those costs arise because of the injury."

Based on our review of the information before us, the panel finds that the purchase of a tractor including a snow blower attachment, is cost effective in the long term and covers the same services (grass cutting and snow removal) as were provided under the ILA. The evidence indicates that the cost of the tractor and attachment which the worker purchased was approximately $11,500. After a period of 8 years, the total amount of monthly ILA payments as compared with the cost of the tractor and snow blower attachment will be roughly the same. After that, the cost of the ILA payments will continue to rise. The panel notes that the employer's advocate acknowledged in her submission that the cost of the ILA over the years would likely be greater than the cost of a tractor.

The panel is satisfied that the information on file and at the hearing established that the worker is mechanically competent, and is able to operate and maintain the tractor and snow blower. The worker indicated in his evidence that historically the maintenance costs for these tractors are minimal or next to nothing. The panel accepts the worker's evidence in this regard.

The panel found the worker to be very thorough in his presentation and his research. It is apparent from both the evidence on file and at the hearing as to how and why the worker chose the tractor that he did and how it was suited to his particular condition and circumstances. Since buying the tractor, the worker has had the opportunity to operate it in both summer and winter, and has demonstrated the suitability and effectiveness of that equipment.

The panel notes that medical evidence and the worker's testimony at the hearing support that the worker is physically and mentally stable at this time. The panel is not aware of anything which would indicate that the worker's health is changing or that he will not be able to continue doing his own grass cutting and snow shoveling in the foreseeable future.

The panel notes and places significant weight on the worker's family physician and treating psychologist's recommendations that the purchase of a tractor would be a positive addition for the worker's mental health and overall quality of life. The worker's mental health status has been a significant issue in the management of his claim, and has in fact been accepted as a compensable sequela of his injury and a major component of his PPI award (35% psychological rating). The psychologist stated that being able to mow his own lawn or shovel his own snow would bring pleasure and positivity to the worker, that it would provide a sense of normalcy and help take his mind off his troubles.

At the time of the hearing, the worker had already had the tractor for approximately 9 months, and his presentation at the hearing confirmed that the purchase of the tractor has indeed had a positive impact on him and on his feeling of self-worth. He is now able to do something that he loves and had not been able to do for a long time. He clearly enjoys and takes pride in being able to contribute and to take care of his yard work and snow removal.

In the panel's view, the facts of this case qualify as exceptional circumstances under the Policy. The worker has a severe and permanent injury. The purchase of a tractor has therapeutic value and minimizes the effects of the worker's injury. The panel is satisfied that the facts and circumstances fit within the spirit and intent of the exceptional circumstances provisions of the Policy, and that the purchase of a tractor (and snow blower attachment) is advisable and should be authorized.

Based on the foregoing, the panel finds that support for the cost of purchasing a tractor (and snow blower attachment) is consistent with the requirements of the Act and Policy, and responsibility should be accepted for the purchase of a tractor.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of May, 2017