The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the payment of the worker’s legal fees. A file review was held on January 26, 2021 to consider the worker's appeal. At the request of the appeal panel, a teleconference hearing was reconvened on March 4, 2021.

Issue

Whether or not responsibility should be accepted for the payment of the worker’s legal fees.

Decision

Responsibility should not be accepted for the payment of the worker’s legal fees.

Background

The WCB accepted the worker’s claim for multiple injuries sustained during a motor vehicle accident while at work on September 15, 2017. The worker received wage loss and other benefits.

On November 15, 2018, the WCB contacted the worker to discuss their claim. At that time, the worker requested the WCB cover legal costs incurred relating to the worker’s immigration status in Canada. The WCB verbally advised the worker those legal costs would not be covered as they did not relate to the worker’s compensable injuries and on December 6, 2018, provided written confirmation of the decision to the worker.

On May 8, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. In their submission, the worker noted that because they were unable “…to get clear answers for my recovery from my health care providers…” they hired legal counsel to assist them in providing response to questions asked by immigration officials.

Review Office found on June 27, 2019 that responsibility would not be accepted for payment of the worker’s legal fees. Review Office noted the worker would have been required to deal with their immigration status even if they had not been injured in the September 15, 2017 workplace accident and the legal fees incurred by the worker were not related to that accident. As such, the WCB would not be responsible for those fees.

The worker’s representative filed an appeal with the Appeal Commission on July 13, 2020 and a file review was arranged for January 26, 2021. At the request of the panel, a teleconference hearing was convened on March 4, 2021. Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On April 12, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB Board of Directors.

Section 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.

Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident." The Act defines medical aid in s 1 as including:

(a) transportation to a hospital or other place where medical care can be given, 

(b) services provided by a hospital or other health care facility, 

(c) treatment or services provided by a health care provider, 

(d) diagnostic services, 

(e) drugs, medical supplies, orthotics and prosthetics, and 

(f) any other goods and services authorized by the board.

When the WCB determines that a worker requires medical aid as a result of an accident, compensation is provided for in s 27 of the Act. Section 27(20) authorizes the provision of medical aid for academic, vocational and rehabilitative assistance, as follows:

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. 

The WCB has established Policy 44.120.30 Support for Daily Living (the “Policy”) to outline 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 includes provision for assistance under the provisions of s 27(20) of the Act to provide assistance to an injured worker for a period of time determined by the WCB when the worker "requires assistance to reduce or remove the effect of a handicap" or "requires assistance in the activities of daily living" as a result of a compensable injury. The Policy allows for assistance for personal care, home and vehicle modifications, child and dependent care, independent living as well as clothing and footwear. The Policy also makes provision for payment of committee or trustee fees where a worker lacks the mental capacity to look after their own financial affairs. Finally, the Policy allows for support beyond what is enumerated in exceptional circumstances, described as follows:

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 or designate.

Worker’s Position

The worker was represented in the hearing by a worker advisor, who made an oral submission in the hearing and provided written submissions for consideration by the appeal panel. The worker provided evidence through answers to questions posed to them by the worker advisor as well as by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that the WCB should accept responsibility for the legal fees incurred by the worker in pursuing their permanent residency in Canada as that application process was made more complex as a direct result of the injury sustained in the compensable accident of September 15, 2017 and, further, the worker’s health was so compromised by the multiple injuries sustained that the worker was unable to pursue the application process without assistance of a lawyer.

The worker advisor, in their submission, outlined the extensive nature of the injuries sustained by the worker in the accident of September 15, 2017, which required lengthy and multiple hospitalizations and ongoing treatment which continues to the present. In the result, the worker was faced with “numerous daily living challenges” and the WCB provided supports to the worker including support for cleaning and household maintenance as well as assistance for tasks such as grocery shopping and meal preparation.

The worker advisor submitted that immigration processes are complex and that while the worker was capable of managing the process to apply for permanent residency prior to the accident, they were not able to do so afterward, due to their injuries and the increased complexity of the process as a result of the worker’s inability to return to work in the period following their injury. The worker advisor submitted the worker also had language-related difficulty in understanding complex issues such as medical or legal matters.

The worker advisor relied upon s 27(20) of the Act and the Policy with respect to support for activities of daily living, arguing that the worker’s injuries are severe and permanent, necessitating special assistance to reduce the effects of the handicap. The worker advisor stated that the worker is unable to manage their activities of daily living without assistance, and similarly, is unable to make and manage a complex legal argument with the immigration program. The worker advisor referred the panel to another case decided by The Appeal Commission in which a brain-injured worker was granted legal fees related to a committeeship as that worker was unable to handle their own financial affairs and suggested that similar considerations are at play in the worker’s appeal.

In sum, the worker’s position is that the requirement for legal assistance was a direct result of the compensable workplace accident, in that, but for the accident, the worker would have been able to meet the requirements of the permanent residency application process and manage the process on their own. The worker’s position is that they could not manage the application without assistance because of a combination of the complexities that arose relating to the accident and their diminished capabilities as a result of the accident. The legal costs were incurred as a result and should be reimbursed by the WCB.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question for the panel to determine is whether or not the WCB should accept responsibility for the payment of the worker’s legal fees. In order to grant the appeal, the panel would have to determine that the expenditure for the worker’s legal fees was necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to the worker as outlined in s 27(20) of the Act. For the reasons outlined below, the panel was not able to make such a determination, and the worker’s appeal is therefore denied.

The panel considered first whether the Act provides authority to grant the worker’s request for payment of legal fees.

The worker advisor submitted that payment of legal fees could be authorized under the provisions of s 27(20). The worker advisor argued that this provision provides authority for the WCB to make such expenditures, under the heading of “other assistance to a worker” where, as a result of an accident, a worker could experience a long-term loss of earning capacity, require assistance to reduce or remove the effect of a handicap resulting from the injury or require assistance in the activities of daily living. The worker advisor also pointed to the provisions of the Policy with respect to support for activities of daily living in exceptional circumstances, as outlined above and noted that a prior appeal panel, in another case, authorized the expenditure for legal fees under the authority of s 27(20) of the Act.

The panel notes the statutory definition of “medical aid” in s 1 of the Act includes any goods and services authorized by the board and that s 27 provides authority for payment of medical aid to cure and provide relief from an injury resulting from a compensable accident. Section 27(20) allows the WCB to

“make such expenditures 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.”

The panel finds that the statutory definition of medical aid is sufficiently broad so as to encompass payment of legal fees, in circumstances where such an expenditure also meets the criteria set out in s 27(20) of the Act with respect to academic, vocational, rehabilitative or other assistance.

Considering these statutory provisions in conjunction the WCB Policy with respect to support for an injured worker’s activities of daily living, the panel finds that there is a statutory foundation for the worker’s request in this case. If a worker requires medical aid to cure and provide relief from an injury resulting from a compensable accident, the WCB may make such expenditures as it considers necessary or advisable to provide other assistance to a worker where, as a result of the accident, the worker could experience a long-term loss of earning capacity or requires assistance to reduce or remove the effect of a handicap resulting from the injury or requires assistance in activities of daily living. In the appropriate circumstances, this could potentially include legal assistance.

Having determined that there may be circumstances where it is appropriate that the WCB authorize payment of an expenditure for legal fees, the panel then considered whether this is such a circumstance.

Reviewing the WCB claim file history, the panel noted that the worker first raised the issue of payment of legal fees in a telephone conversation with the WCB on November 9, 2018, at the same time as the worker requested that the WCB also bring a family member to Manitoba from the worker’s country of origin to provide care. A few days later, as set out in a file memorandum dated November 14, 2018, the worker provided the WCB with a claim update, noting that they are “...here on a work visa and the injury has complicated [their] situation and as a result [they wish] to discuss WCB covering the cost of [their] immigration lawyer.”

On November 15, 2018, the WCB case manager addressed the worker’s request for legal fees to be paid in a telephone conversation with the worker, indicating that the WCB was not able to cover the cost of the worker’s immigration-related legal fees. The worker at that time again confirmed that the lawyer was hired due to complications with the work permit related to the compensable injury. The worker again discussed this question with the WCB case manager during a home visit that took place on November 19, 2018. At that time, the worker confirmed to the WCB case manager that the work visa permit was to expire in December 2019 and that they had been approved to apply for permanent residency in Manitoba. The case manager again advised that the WCB does not cover the costs of legal fees for immigration. The worker confirmed that they had already paid half of the legal fees at that time. In the same conversation, the worker also expressed interest in returning to some kind of work, including volunteering and the case manager provided the worker with some information as to the WCB’s vocational rehabilitation and return to work programs.

On December 6, 2018, the WCB case manager formally confirmed to the worker that the costs of legal fees relating to the worker’s application for permanent residency are not related to the compensable injury of September 15, 2017 and therefore the WCB would not assist with those costs. This is the decision that the worker is appealing.

The worker’s evidence is that their pre-accident status in Canada was as a worker with a visa permit that allowed them to work in Canada from 2016 until December 7, 2019. The worker testified that in early 2018, several months after the compensable accident, they submitted their letter of intent to apply for permanent resident status and that they were subsequently invited to apply for that status, but on attending an information session regarding that process, learned that they would have to submit additional documentation with the application to confirm they had worked for a sufficient period of time to qualify under that program, and that they were in receipt of income from employment. The worker advised the panel that in light of the fact that they were receiving WCB wage loss benefits rather than employment income and did not yet have a known return to work date at that time, they pursued this question further with immigration program staff. The worker advised the panel that the response received from the immigration program was that they should wait to submit the application until details of the return to work were known. The worker further testified that in spring 2018, when this advice was obtained, the treating medical professionals and the WCB were unable to provide confirmation as to when the worker would be in a position to return to work, and therefore, the worker then took steps to seek assistance with the application, including retaining a lawyer to assist with the process.

On questioning by panel members, the worker indicated that they first sought assistance from the lawyer in spring of 2018. This was after the worker had already been invited to submit their application for permanent residency and learned that further information would be required to confirm their employment and income status. The panel notes that the WCB file record confirms that at this time there was no consideration being given to a return to work as the worker continued to recover from the multiple and significant injuries sustained in the compensable accident.

The panel requested further information from the worker as to the details of the legal process undertaken to secure the worker’s permanent residency status in Canada. The worker, through the worker advisor, advised the panel that the immigration program advised that the worker would not be entitled to permanent residency status because the worker was unemployed and injured, but that the program was persuaded, through the lawyer’s efforts, that the worker was not permanently unemployed but temporarily so, due to no fault of the worker. Further, the lawyer persuaded the program that the worker remained a worker despite their temporary unemployment and that the WCB wage loss benefits constitute income from employment. The worker advisor stated that legal assistance was necessary for the worker’s application for permanent residency to succeed as the arguments were too complex for the worker to make on their own.

The panel considered whether the facts here constitute such “exceptional circumstances”, as contemplated by the Policy in applying the provisions of s 27(20) of the Act, that the WCB should have exercised its discretion to provide financial support for the worker’s immigration-related legal expenses.

The panel considered that the Policy sets out several examples of what constitutes exceptional circumstances, including 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. The worker advisor submitted that the effects of the worker’s injury are of a similar nature, that necessitate special assistance to reduce the effects of the disability resulting from the injury.

While the panel acknowledges, based upon the medical reporting in the worker’s WCB claim file, that the worker has experienced and continues to experience significant mental and physical limitations arising out of the accident, there is also evidence that during the period when the worker was obtaining legal assistance, the worker was not completely disabled as a result of the injury, such that they were able to, for example, assist another family member with their immigration application, and were medically cleared for a return to work, with restrictions, in 2019.

The panel also acknowledges that as a result of the worker’s compensable injuries, the worker’s application for permanent residency became more complex such that it may have been advisable for the worker to obtain legal assistance. This does not mean, however, that it was necessary or advisable for the WCB to provide the worker with financial assistance with their permanent residency application. The panel finds that the worker’s application for permanent residency was neither a barrier to their recovery nor an effect of a handicap resulting from the injury sustained, but was a discretionary choice made by and for the long-term benefit of the worker.

The panel also considered that the worker’s goal in obtaining legal counsel was not to maintain or renew their work visa but to obtain permanent residency. The worker’s evidence is that with the assistance of a lawyer, they were able to successfully apply for permanent resident status in Canada, which acceptance was granted just prior to the expiration of the worker’s visa in December 2019. The panel takes note that the worker’s status as a permanent resident of Canada as of December 2019 is not equivalent to the worker’s pre-accident immigration status as worker with a visa permit. The panel finds that this change in the worker’s immigration status from their pre-accident status is not related to, or the result of the compensable injury arising out of the accident of September 15, 2017, nor does this change in status cure or provide relief from the effects of any disability resulting from the worker’s injuries.

Further, the panel noted the information provided by the worker advisor, in response to the panel’s request for further information, indicating that had the worker’s application for permanent residency been refused, there were further options available to the worker to have that decision reviewed or appealed. As well, the worker testified that the lawyer also made a concurrent application for an extension of the work permit, indicating to the panel that this was another option that the worker might also have been able to pursue, on their own or with the assistance of the WCB had the worker sought that support.

The panel also considered that the worker did not seek out the WCB’s authorization for the expense prior to incurring it, and in fact, did not request WCB to contribute to the cost of legal fees until at least 5 months after they retained a lawyer and paid out half of the costs of those services. In the result, the worker did not provide the WCB opportunity, in advance of the worker incurring these costs and as required by the Policy, to consider whether this was an exceptional circumstance that would merit support under the provisions of the Policy, or to provide any support or assistance to the worker in the application process.

On the basis of the evidence before the panel, we are not satisfied that these are exceptional circumstances in which the WCB should have exercised its discretion to provide support for the worker’s immigration-related legal expenses. Therefore, the panel concludes, on a balance of probabilities, that the provision of payment for the worker’s legal fees as requested by the worker was not necessary or advisable, and is not supported in these circumstances. Responsibility should not be accepted for the payment of the worker’s legal fees. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of April, 2021