Decision #77/17 - Type: Workers Compensation
Preamble
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that he was not entitled to a lump sum settlement of his Special Additional Compensation benefits and that he was not entitled to further independent living assistance for house cleaning after August 31, 2015.
A hearing was held on May 8, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to a lump sum settlement of his Special Additional Compensation benefits; and
Whether or not the worker is entitled to further independent living assistance for house cleaning after August 31, 2015.
Decision
That the worker is not entitled to a lump sum settlement of his Special Additional Compensation benefits; and
That the worker is not entitled to further independent living assistance for house cleaning after August 31, 2015.
Background
The worker injured his right wrist in a work-related accident on July 22, 1980 and was later diagnosed with right wrist de Quervain's tenosynovitis. His claim for compensation was accepted and various types of benefits and services were paid. File information also showed that the worker has a below elbow amputation of his right arm which was not accepted as a WCB responsibility. The worker also has an accepted claim with the WCB for a left elbow injury that occurred in 1992. The diagnosis accepted as compensable was a left elbow lateral epicondylitis.
The worker has permanent work restrictions in relation to both of his compensable injuries.
On July 2, 2015, the worker was advised by a senior case manager that the WCB was not able to cover the costs associated with cleaning services beyond August 31, 2015. The basis for the decision was that the worker's below elbow amputation of his right arm was not approved by the WCB and therefore she was not able to approve cleaning services beyond August 31, 2015.
In May 2016, the worker requested that the WCB pay for house cleaning services with respect to his 1992 claim. In a decision dated May 24, 2016, the case manager advised the worker that she was not able to authorize house cleaning costs on his 1992 claim simply because it was cancelled on his prior claim.
On June 6, 2016, the worker was advised that the WCB was not able to authorize an Independent Living Allowance ("ILA") due to his left elbow injury based on the findings that his restriction of no lifting more than 10 pounds would not limit him from performing his housework duties. The worker was advised that based solely on his compensable injury and restrictions, an ILA was not warranted. The worker disagreed with the decision and an appeal was filed with Review Office.
On June 16, 2016, the worker attended the WCB offices and requested a lump sum settlement of his Special Additional Compensation ("SAC") benefits so he could pay for surgery to his back.
On September 15, 2016, Compensation Services advised the worker that they were not able to provide him with a lump sum settlement with respect to his SAC benefits. Based on WCB guidelines associated with Policy 44.60.30 and 44.60.20, the worker was advised that his SAC benefits would continue until he reached the age of 65 years. There were no provisions to provide a lump sum settlement for this type of benefit. On September 27, 2016, the worker appealed the decision to Review Office.
On October 17, 2016, Review Office determined there was no entitlement to a lump sum settlement with respect to the worker's SAC benefits. Review Office noted that the worker began to receive SAC in October 2000 which was a monthly pension for the physical loss or permanent impairment resulting from an accident which does not adequately compensate the worker for the loss of earning capacity caused by his injury. Review Office stated that entitlement to SAC benefits cannot be projected and the amount comminuted in advance, as it is unknown what the future may bring. This differed from the PPD award that was paid in a lump sum as the worker's disability was not expected to improve.
Given that SAC is paid until 65 on a move forward basis and a projection the full period is reached at age 65 would purely be speculative, Review Office confirmed that a lump sum settlement would not be granted.
On January 27, 2017, Review Office determined there was no further entitlement to an independent living assistance (ILA) for the costs of house cleaning beyond August 31, 2015 in relation to the worker's 1980 or 1992 compensable injuries.
Review Office acknowledged that the worker was a below right elbow amputee; however, the amputation was not a compensable condition. The worker's functional challenges associated with activities of daily living due to the amputation was not the responsibility of the WCB. Based on the worker's compensable injuries (right wrist and left elbow), Review Office determined that the worker would not have limitations performing house cleaning tasks and therefore, he would not have required cleaning services.
Review Office concluded that based on the Act and Board policies, ILA in the form of house cleaning services was not required in relation to the worker's compensable injuries.
On November 21, 2016 and January 27, 2017, the worker appealed the two decisions made by Review Office 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 Workers Compensation Act (the “Act”), regulations and policies of the WCB's Board of Directors.
The worker was initially injured in 1980 and had another injury in 1992. He is appealing two issues with respect to his claims:
Issue 1: Whether the worker is entitled to a lump sum settlement of his SAC benefits.
This issue arises from the worker's 1980 claim. Subsection 40(2) of Act, at that time, provided for the payment of Special Additional Compensation in certain cases. WCB Policy 44.60.30 Special Additional Compensation, outlines the circumstances where SAC benefits are paid.
Issue 2: Whether the worker is entitled to further independent living assistance for house cleaning after August 31, 2015.
This issue is applicable to the worker's 1980 and 1992 claims. Subsection 27(20) of the Act provides that the WCB may make expenditures from the accident fund as it considers necessary or advisable to provide assistance to a worker for such period of time as the WCB determines where as a result of an accident, the worker requires assistance in the activities of daily living.
WCB Policy 44.120.30, Support for Daily Living provides that the WCB may provide assistance to an injured worker for a period determined by the board, when the worker requires assistance with the activities of daily living, as a result of a compensable injury.
Worker's Position
Issue 1: Whether the worker is entitled to a lump sum settlement of his SAC benefits.
The worker advised the panel that he is seeking a lump sum settlement of his SAC benefits because he requires surgery on his back. He described his back condition and advised that the hoped to go to Germany or to the United States for the surgery. He does not want to have the surgery in Canada because his experience with Canadian healthcare has not been good.
He also told the panel that he is nearing 65 years of age and is aware that his SAC benefits will soon end. He said he wants to get his body fixed before he loses the benefit.
The worker advised the panel that he received a lump sum settlement of his permanent partial disability award. He considers the SAC payment to be similar. He also noted that when his SAC benefits end at age 65, he is eligible for a further benefit, like a pension.
Issue 2: Whether the worker is entitled to further independent living assistance for house cleaning after August 31, 2015.
The worker advised that he had received an allowance for housekeeping and that he thought he would receive the allowance for his lifetime. He said that WCB discontinued paying for the housekeeping service. He advised that he injured his elbow in the 1992 claim and that as a result he cannot do any housekeeping.
The worker said that:
…she does my laundry, she does whatever I can't do, she does. So, I just think that I should be reinstated because I'll never be able to clean my house as long as I live.
The worker disagreed with the WCB's refusal to accept responsibility for his right hand amputation. He disagreed that he could have performed housekeeping if he had not undergone the right hand amputation. The worker said that the WCB paid for housekeeping before he had the right hand amputation.
Regarding his medical history, the worker advised that the right hand amputation was the best thing that happened. He said he could not do anything with his right hand before the surgery.
The worker agreed that at a prior hearing that he advised that he could carry packages with his right arm and could drive a car. At this hearing the worker acknowledged that he can make meals and clean up the dishes. He said that he cannot clean the house, wash floors or vacuum.
Employer's Position
The employer did not participate in the appeal.
Analysis
Issue 1: Whether the worker is entitled to a lump sum settlement of his SAC benefits.
The worker is appealing the WCB's refusal to commute his current monthly SAC benefit into a lump sum payment. For the worker's appeal of this issue to be approved, the panel must find that there is statutory or policy authorization for the commutation of SAC benefits and payment of the lump sum.
The panel has considered the worker's request and the legislative and policy provisions dealing with SAC benefits. The panel is not able to find statutory or policy authorization to allow the payment of SAC benefits as a lump sum. The panel finds that the worker is not entailed to have his SAC benefits paid as a lump sum.
SAC benefits are paid in accordance with Subsection 40(2) of the Act as it existed prior to 1992. As the worker's claim arose in 1980, he is eligible for SAC benefits under this section. Subsection 40(2) does not provide for a lifetime payment unlike the provision for permanent partial disability awards under the pre-1992 legislation.
Eligibility for SAC benefits is set-out in WCB Policy 44.60.30 Special Additional Compensation (the SAC policy).
Section 3 of the SAC policy deals with duration of the benefits. It provides:
3. Duration of Entitlement
When the worker continues to meet the entitlement criteria, SAC will continue until the worker's anticipated retirement date as defined in Policy 44.60.20, Date of Retirement.
This means that benefits will be paid only while the worker continues to qualify under the terms of the policy and only until the worker's anticipated date of retirement, as determined under Policy 44.60.20. The Date of Retirement Policy provides that generally a worker's date of retirement will be considered to be the date when the worker reaches age 65. Accordingly SAC benefits generally cease when the worker reaches age 65.
The panel notes the SAC policy provides that entitlement to SAC benefits is reviewed annually. This means that SAC benefits are paid subject to eligibility and can be discontinued. In the panel's view, SAC benefits are not intended to be permanent benefits. SAC benefits differ significantly from permanent partial disability benefits which are payable for the worker's lifetime and can be commutated into a lump sum.
As noted above, the panel finds that the worker is not entitled to have his SAC benefits paid as a lump sum.
The worker's appeal is dismissed.
Issue 2. Whether the worker is entitled to further independent living assistance for house cleaning after August 31, 2015.
The worker is appealing the WCB decision that he is not entitled to an independent living allowance for house cleaning after August 31, 2015. For the worker's appeal to be approved the panel must find that the worker is entitled to receive this allowance after August 31, 2015. The panel was not able to make this finding.
The panel has considered WCB Policy 44.120.30, Support for Daily Living, and finds, on a balance of probabilities, that the worker is not entitled to an independent living allowance for housekeeping after August 31, 2015.
This issue deals with both of the worker's injuries, his right hand injury (1980 claim) and his left elbow injury (1992 claim). The worker argued that due to the loss of his right hand and the condition of his left hand, he is not able to perform housekeeping duties in his home.
Regarding his abilities, the worker acknowledged that he can carry packages with his right arm, look after his own food needs including preparing meals and clean up after meals. He can also drive his own vehicle. The panel notes the worker has volunteered his services as a driver picking up supplies for a local hospital. The worker told the panel that he cannot clean the house, wash the floor and vacuum the rug. When asked what he can't do with his left hand, the worker advised that he recently had surgery on the left hand. He noted that he was involved in an automobile accident where he jammed his elbow in the steering wheel and can't do very much.
Regarding the worker's right arm/hand restrictions, the panel gives no weight to his argument that he is not able to perform duties because he has lost his right hand and that this was the situation as well before the amputation. The information on the worker's file suggest that before the amputation the worker had fairly good function of the right hand. The panel notes and relies on the February 13, 2004 findings of the Medical Review Panel:
All in all this man has a fairly good function of the right hand when functions are examined specifically.
The panel notes that the amputation has been determined to be a non-compensable condition by a prior Appeal Commission panel. As such, the panel is not able to consider any loss of function resulting from his non-compensable personal decision to have this right hand amputated.
In conclusion, the panel finds, on a balance of probabilities, that the worker has sufficient function to perform his own housekeeping duties and is not entitled to an independent living allowance for housekeeping after August 31, 2015.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of June, 2017