The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made
by the Workers Compensation Board ("WCB") that the WCB was no longer responsible to cover the costs associated with the rental of a power wheelchair and to deny responsible for wage loss benefits on May 25, 2016 for his escort.  A hearing was held on September 12, 2017 to consider the worker's appeals.

Issue

Whether or not responsibility should be accepted for further costs associated with the rental of a power wheelchair; and

Whether or not the worker's escort is entitled to wage loss benefits for May 25, 2016.

Decision

That responsibility should not be accepted for further costs associated with the rental of a power wheelchair; and

That the worker's escort is entitled to wage loss benefits for May 25, 2016 only.

Background

The worker has an accepted claim with the WCB for injury to both legs that occurred on July 20, 2015 when a large steel beam fell onto him. File records show that the worker was provided with various benefits and services from the WCB which included medical aid benefits, a Personal Care Allowance and an Independent Living Allowance.

On February 22, 2016, Compensation Services wrote the worker to advise that effective February 23, 2016, the WCB was unable to accept ongoing responsibility for the cost of the rental of power wheelchair as it was felt that a regular wheelchair was an appropriate, sufficient and cost-effective option that would continue to be funded by the WCB as long as medically necessary due to limited weight bearing. On April 7, 2016, the worker's claim was considered by Review Office as the worker disagreed with the decision outlined on February 22, 2016. In his submission to Review Office, the worker stated, in part:

…I used to have a walk using power wheelchair every day for my emotional stability and recovery from my injury, get some fresh air, get some Vitamin D from the sun, enjoy the life how it is to keep my old will to live. With this decision, they cut my possibility to do so, cut my independent mobility, cut my believe (sic) that the WCB understands and meets injured worker's needs…

Review Office stated in its decision of April 7, 2016 that the WCB approved rental fees associated with a power wheelchair for the worker to use outdoors in August 2015, as at the time, due to his injuries, the worker was restricted from full weight bearing. It found that this was a discretionary decision made by the case manager at that time. Review Office noted that the worker was currently full weight bearing on his left lower extremity and partial weight bearing on his right lower extremity. He mobilized in his home with the use of a four-wheeled walker and a wheelchair when going out of the home.

Review Office referred to an email on file from a WCB rehabilitation specialist who stated, in part:

…I cannot support the continued use of a power wheelchair, modifying his rental wheelchair with different wheels or a more extensive wheelchair rental at this point… It is my opinion that [the worker] should be capable of ambulating more at this point without the use of a wheelchair and does not require a more specialized wheelchair given the extent of his healing and weight bearing status at this point…

Review Office concluded that the worker was currently in active rehabilitation for his injuries and that it concurred with the WCB rehabilitation specialist's opinion and recommendations. Considering the provisions of the Act and the policy, Review Office found that further responsibility for the rental fees associated with a power wheelchair was no longer warranted from a rehabilitative and cost effect perspective.

On May 31, 2016, the WCB adjudicator contacted the worker and advised that, based on a file review, it was brought to the adjudicator's attention that she should not have paid the worker's escort $11/hr. for assistance with driving to medical appointments in Winnipeg on the dates when the escort was not scheduled to work. She advised there would be an overpayment established for such payments made in the past that would be written off as an administrative error. The adjudicator also suggested that if his wife could drive the worker, then they could claim childcare expenses.

In a memo to file dated June 1, 2016, the WCB adjudicator stated, in part:

He (worker) said that [name/escort] can no longer provide assistance as escort to him now that I advised he would not be paid for his time at $11/hr. He said [escort] is in job search and his time is valuable. He said that [escort] had an important job interview on May 25/16 however he agreed to help [worker] and drove him to Wpg. He lost an opportunity to be hired and he feels it is unfair we cannot even pay for his time. I advised that I would be unable to pay [escort] neither for May 25/16 as there was no verifiable wage loss, nor for any lost opportunities. I explained again that the Medical Aid policy stipulates we can issue wage loss to escort when there is wage loss. Personal time is not compensable. I said it was my error to have paid [escort] for couple instances based on $11/hr previously and this overpayment will be written off as administrative error.

In a formal decision dated November 25, 2016, Compensation Services advised the worker that "…escort wage loss replacement was not authorized for May 25, 2016 given that [name] escort was not employed at the time of providing escort assistance and the WCB was unable to confirm the fact of his wage loss."

On January 10, 2017, the worker's claim was considered by Review Office as the worker disagreed with the decision made by Compensation Services to deny wage loss benefits to his friend/co-worker ("escort") who accompanied him to attend the medical appointment on May 3, 2016.

In its decision of January 10, 2017, Review Office referred to the argument put forth by the worker's advocate that:

"…WCB Policy 44.120.30.01 does allow the cover of the cost of providing attendant care at $11.17/hour…As [worker] could not travel alone and required an attendant with him on these appointments to Winnipeg."

The advocate requested that the WCB "recognize the claimant's right to have an attendant and the attendant be paid according to Policy 44.120.10."

Review Office stated that the advocate's use of the policy 44.120.30.01 was not applicable and that the situation at hand was best represented under Policy 44.120.10.

Review Office commented that the escort did not suffer a loss of wages on May 25, 2016 and it was not able to substantiate the advocate's claim that the escort should have had wage loss coverage on this date. As this could not be supported by an application of policy, Review Office was "unable to make the determination that the escort has suffered any loss of earnings and as such is entitled to coverage for May 25, 2016."

On August 22, 2016 and February 2, 2017, the worker appealed the decisions made by Review Office and an oral hearing was arranged for September 12, 2017.

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 Board of Directors.

Subsection 27(1) of the Act deals with medical aid. It states that:

Provision of medical aid 

27(1) 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.

Academic, vocational, rehabilitative assistance 

27(20) 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 these sections the Board of Directors enacted the following:

WCB Policy No. 44.120.10, Medical Aid, which presents a comprehensive and coordinated approach to delivery of medical-aid services to injured workers.

WCB Policy No. 44.120.30 (and No. 44.120.30.01), Support for Daily Living, which provides guidance regarding the WCB's approach to supporting workers' participation in the daily workplace and personal activities after an accident.

The worker is appealing two decisions made by the WCB Review Office arising from his 2015 workplace accident.

Worker's Position

The worker was represented by an advocate who provided oral and written submissions on the worker's appeal. The worker and his advocate answered questions from the panel.

Issue 1: Whether or not responsibility should be accepted for further costs associated with the rental of a power wheelchair.

The worker's representative noted that the WCB had initially approved the motorized wheelchair as the worker was restricted from full weight bearing. She noted that on August 19, 2015, the case manager stated that

"…[The worker] said he would appreciate a chance to be able to be with his family when thaye (sic) go shopping in the nearby stores, when they go to the park while the weather is nice, etc…His manual wheelchair is not quite fit for more distant trip…"

In support of the worker's appeal, the worker's representative relied upon:

• the July 5, 2016 opinion of the treating psychologist. The psychologist noted that the worker "…feels unsafe in the standard wheelchair when he was outside as he is not able to concentrate on his children as he has to be actively engaged in the operation of the wheelchair." The worker's representative noted that the psychologist commented that the worker's psychological condition could improve if he could engage in activities outside his house.

• a report from the treating physiotherapist dated June 13, 2016 which recommended a motorized wheelchair for safety reasons.

• a prescription dated July 19, 2016 by the worker's orthopedic surgeon for "Motorized scooter or wheelchair."

The worker's representative noted that the WCB is not fulfilling its responsibilities under WCB policies. She submitted that:

[The worker] has not been provided with easy, caring, right and clear service. WCB failed to provide a motorized wheelchair or scooter which would have allowed [worker] access to just daily living by being able to engage in activities that he took part in prior to his accident.

The representative relied upon WCB Policy 44.120.30.01 which provided:

Exceptional Cases. Where unique circumstances arise: the worker may be eligible for additional or alternative support services or products as authorized by a WCB Director in accordance with the financial authority levels established by the WCB.

In answer to questions, the worker advised:

• he used the motorized wheel chair provided by the WCB until late February 2016, when it was returned. 

• he obtained a different motorized wheelchair which he used from August 1, 2016 to April 30, 2017. - - he did not pay yet for the rented motorized wheelchair but provided the panel with a letter from the vendor. • he had ankle fusion surgery on his right ankle in December 2016 and could not fully weight bear after the surgery

The worker also provided details on his use of the motorized wheelchair.

Issue 2: Whether or not the worker's escort is entitled to wage loss benefits for May 25, 2016.

The worker's representative advised that the worker disagrees with the Review Office decision that the WCB cannot reimburse the worker's friend who acted as an escort in driving the worker to a medical attendance in Winnipeg.

She submitted that Policy 44.120.30.01(Support for Daily Living) should be applied as opposed to Policy 44.120.10 (Medical Aid). She noted that: 

[Worker] required that someone drive him to Winnipeg for ongoing appointments, he was in a wheelchair and unable to drive due to his injuries. [Worker] had a friend (Mr. G) that was able to act as an attendant and escort him. In the WCB letter dated June 29, 2016 it states that Mr. G did not experience any actual wage loss.

She submitted that Policy 44.120.30.01 allows the WCB to cover the costs of providing attendant care at $11.17 per hour effective October 13, 2013 and that this payment would be paid directly to the service provider or as an allowance to the worker. In response to a question from the panel, the representative acknowledged that this Policy could not be applied because it only covered decisions made between October 1, 2000 and February 28, 2014.

The worker advised that this appointment was arranged at the last minute because of his worsening condition. The worker said that he was not able to drive himself.

In answer to questions from the panel, the worker confirmed that the friend had driven the worker to Winnipeg for medical care on prior occasions. He said that if the friend missed work to drive the worker, the worker's employer would pay the friend and the employer would be reimbursed by the WCB. He noted that the friend was employed by the accident employer. He also advised that if the friend was not working on the date of an appointment, the WCB would pay the worker directly.

The worker confirmed that on May 25, 2016, the friend was not employed. They expected that, as in the past, the friend would be paid directly by the WCB. He was not told in advance that the WCB could not pay the friend for his services because he was not employed.

Employer's Position

The employer was represented by an employer advocate who provided a written submission. She indicated that the employer agreed with the Review Office on the first issue. Regarding the supply of a power wheelchair, the employer representative noted that a WCB rehabilitation specialist reassessed the worker's needs on February 11, 2016 and stated that, given the extent of his healing and weight-bearing status, the specialist could not support the continued use of a power wheelchair, modifying his rental wheelchair with different wheels or a more extensive wheelchair rental at that time.

The employer representative noted that the case manager advised the worker on February 22, 2016 that a power wheelchair would be considered an exceptional circumstance where there is evidence that a regular one cannot be safely operated. As the worker could safely operate a regular wheelchair, a power wheelchair would not be approved.

The employer representative advised they did not have a position on Issue 2.

Analysis

Issue 1: Whether or not responsibility should be accepted for further costs associated with the rental of a power wheelchair.

The panel has considered this issue in light of Policy No. 44.120.30, Support of Daily Living Policy, which outlines the general criterial 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 provides, in part 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.

The assistance should not impede progress in other areas of the worker's rehabilitation, including medical recovery, vocational rehabilitation, and return to work.

For the worker's appeal of this issue to be approved, the panel must find that the provision of the power wheelchair was permitted under the WCB policy. The panel was not able to make this finding.

The panel has considered the evidence surrounding the worker's request for and need for a motorized wheelchair. The panel finds that the evidence does not support that a motorized wheelchair was required during the period after February 24, 2016.

The panel attaches significant weight to the February 24, 2016 opinion of the WCB rehabilitation specialist who wrote:

I spoke to [wheelchair provider] regarding their (the worker's) concerns that the standard wheelchair [the worker] has is not suitable for outdoor use. [The worker] has a Pride Stylus wheelchair with either 22" or 24" rear wheels…This is a standard wheelchair that many people use and are able to use outdoors as well…Apparently, [the worker] told [the wheelchair provider] that he has trouble getting going with the wheelchair because the wheels are rubber so there is no traction and its difficult to use on the ice…I cannot support the continued use of a power wheelchair, modifying his rental wheelchair with different wheels or a more extensive wheelchair rental at this point… It is my opinion that [the worker] should be capable of ambulating more at this point without the use of a wheelchair and does not require a specialize wheelchair given the extent of his healing and weight bearing status at this point…" 

The panel notes the worker is seeking payment for a motorized wheelchair from August 2016 to April 2017. The panel understands that the worker's condition changed significantly in December 2016 and notes there is insufficient information on file to adjudicate the worker's need for a motorized wheelchair after his surgery in December 2016. The panel finds, on a balance of probabilities, that the worker is not entitled to the rental of a motorized wheelchair during the period August 2016 to December 2016. The issue of the worker's need for a motorized wheelchair after December 2016 should be adjudicated by the WCB.

In answer to questions, the worker said that he was provided with a motorized wheelchair for the period July 2016 to April 2017 by a local vendor. Regarding the amount of rent that he paid, the worker said that the WCB must contact the vendor to discuss this. He provided a copy of an invoice from the vendor which indicated:

Please be advised that [worker] has rented a power wheelchair from our company since August 1, 2016 until April 30, 2017.

If you wish to discuss details of his rent, you may contact us at [email address] or call us at [phone number].

The panel finds that the above information and the worker's reply to the panel's questions suggests that the worker did not pay rent for the device and assumes that a rental payment might be forthcoming. In any case, given our decision that the worker is not entitled to reimbursement for rental of a motorized wheelchair during the period from August 2016 to December 2016, the issue is moot.

The panel notes the worker's request for the motorized wheelchair was supported, at times, by his treating physiotherapist, psychologist and orthopedic surgeon. However, the panel prefers the opinion of the rehabilitation specialist who is trained in the field.

Issue 2: Whether or not the worker's escort is entitled to wage loss benefits for May 25, 2016.

The panel notes that the Medical Aid policy provides that the WCB may provide escorts for medical appointments if the WCB determines that the injured worker's functioning level requires it. The policy provides further that an escort may be provided if it is unsafe for the injured worker to travel alone. The policy provides that the WCB will cover the escort's travel, accommodation, meal and wage loss.

In this case, the worker's friend drove him to Winnipeg for necessary medical care on May 25, 2016. The friend had driven the worker to appointments in the past. The friend worked for the same employer and would be paid his wages by the employer; the WCB would then reimburse the costs to the employer. At other times when the friend was not missing work, the WCB would pay the worker directly. However, on this occasion, the friend was unemployed and sustained no wage loss.

In considering this request for payment, the WCB relied upon Policy No. 44.120.10, Medical Aid Policy, which provides that:

3. Expenses

a. Expenses Incurred to attend Compensable Medical Treatment

ii) The WCB may provide escorts for medical appointments if the WCB determines that the injured worker's functioning level requires it. An escort may also be provided if it is unsafe for the injured worker to travel alone. The WCB will cover the escort's travel, accommodation, meals, and wage loss. (underlining added)

The WCB denied the worker's request to pay the friend for his time because the friend did not sustain a wage loss.

While the panel agrees with the Review Office's interpretation of the Medical Aid Policy, the panel finds however, that the WCB did not advise the worker or the friend prior to the provision of the service, that the friend would not be paid for that day. The worker and the friend relied upon the WCB's past actions in providing payment regardless of whether the worker missed time from work or not. The panel finds that in the unique circumstance of this case, the detrimental reliance on the WCB's past actions and the necessity that the worker receive medical treatment in Winnipeg, it is appropriate to pay the friend the provincial minimum wage for his services in acting as an escort on May 25, 2016.

The panel rejects the worker's positon that the worker should be paid as an attendee under Policy 44.120.30.01. This Policy was not in force at the time the service was provided. 

The worker's appeal is approved on this issue.

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 20th day of September, 2017