Decision #13/22 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to an additional annual clothing allowance. A file review was held on December 7, 2021 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to an additional annual clothing allowance.
Decision
That the worker is not entitled to an additional annual clothing allowance.
Background
The worker has an accepted WCB claim for burn injuries sustained when an explosion occurred at work on June 23, 2020. The worker had extensive burns to approximately 25% of his body, required several skin grafts, and was in hospital for approximately one month.
After the worker left hospital, he required ongoing medical treatment and physiotherapy and received other medical aid and daily living supports from the WCB. On July 30, 2020, the WCB advised the worker's mother that the worker would be issued a lump sum clothing allowance for the upper body in the amount of $342, as he required specialized clothing with UV shielding due to his injuries, and that this would be reviewed annually.
On April 27, 2021, the WCB spoke with the worker, who provided the WCB with an update on his injuries and advised he had found new employment. The WCB indicated to the worker that he would be issued a clothing allowance in June for upper body UV clothing.
On June 9, 2021, the worker requested an increase in the amount of his annual clothing allowance. The worker submitted that he was not able to be outside without his long sleeve sun shirts and sunscreen and had found that the three shirts he purchased in 2020 were already wearing out. By letter dated June 9, 2021, the WCB's Compensation Services advised the worker that he was entitled to the maximum amount for the clothing allowance under the WCB policy for the upper body burns he sustained, which amount would be reviewed annually and was $343 for 2021.
On June 18, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that because of his injury and the skin grafts, his skin was extremely sensitive to the sun and he had been advised he needed to continue wearing SPF sun shirts with long sleeves to protect himself. The worker asked that he be provided with an increase in the clothing allowance to allow him to purchase more garments, as the current allowance only allowed for a limited number to be purchased and did not cover the number he felt he required.
On July 26, 2021, Review Office determined that the worker was not entitled to an additional annual clothing allowance. Review Office found the worker was receiving the maximum clothing allowance for his upper body injury pursuant to the legislation and WCB policy, and that this amount was not open to interpretation by Review Office. Review Office noted that the amount varied slightly from year to year, and the worker would be entitled to an annual amount going forward, which would be reviewed by Compensation Services.
On September 21, 2021, the worker appealed the Review Office decision to the Appeal Commission and a file review 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.
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.
Subsection 27(1) of the Act states that the WCB "…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 27(2) provides for a clothing allowance in certain cases, and reads as follows:
In addition to the other compensation provided by this Part, the board may allow to an injured worker who, because of the nature of an injury in respect of which he has received compensation, wears a prosthetic device or orthotic device, an additional clothing allowance to compensate for the additional deterioration of clothes caused by the wearing of the prosthetic device or orthotic device.
The WCB Board of Directors has established WCB Policy 44.120.30, Support for Daily Living (the "Policy"), the "Policy Purpose" section of which states 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 may be provided to and for the benefit on injured workers. Paragraph 6 of the Policy provides as follows:
6. Clothing and Footwear
Assistance may be provided for additional costs associated with the purchase of clothing and footwear, including where footwear or other special clothing is required or must be replaced more frequently as a result of the injury.
The Administrative Guidelines to the Policy further provide, in part, as follows:
C. Clothing and Footwear
Eligibility
Eligibility for assistance with clothing and footwear is based on whether the worker incurs additional clothing and footwear costs as a result of the compensable injury.
Parameters
Assistance will be provided up to a maximum amount established by the WCB, based on standard clothing and footwear costs and the nature of the injury….
Administering Assistance
...
Where assistance is required on a long-term basis, such as when special clothing or footwear is required or needs to be replaced more frequently because the worker wears a prosthetic/orthotic device or uses a mobility device such as crutches or a wheelchair, the WCB will provide an allowance.
The maximum annual upper body clothing allowances payable for 2020 and 2021 are set out in the Policy as $342 and $343, respectively.
Worker's Position
The worker was self-represented. The worker's position, as set out in his Appeal of Claims Decision form, was that the burns to his upper body were a direct consequence of the work explosion in which he was injured, and his request for an additional or increased allowance for special clothing he requires as a result of his injury should be granted.
The worker submitted that he needs to protect his skin from the sun when he is outside more than ever now, as he will burn easily and this can eventually lead to cancer. He noted that the long sleeve sun shirts he requires cost $70-90 each, and with the allowance he has been given, he is only able to get about three shirts a year, which get dirty easily. The worker submitted that due to the effects of his injury, he has to wear these shirts at his new full-time job, which is at an outdoor location, as well as when he plays sports outdoors.
The worker submitted that most people need and wear more than three shirts a year. He noted that his shirts from last year were very worn because of the increased use. In conclusion, the worker noted that the WCB does not question his sunscreen use, and submitted that his need for shirts to prevent further damage should not be an issue.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not the worker is entitled to an additional annual clothing allowance. For the worker's appeal to be successful, the panel must find that payment of an additional or increased annual clothing allowance is permitted under the Act or Policy. The panel is unable to make that finding, for the reasons that follow.
In arriving at our decision, the panel notes that the Policy expressly states that the clothing allowance is intended to provide assistance for "additional" costs associated with the purchase of special clothing where it is required as a result of a worker's compensable injury. The Policy is clear that the allowance is only intended to assist with the difference in the cost of items of clothing which a worker may require as a result of their injury, and is not intended to cover the entire cost of such clothing.
The panel further notes that provision of the clothing allowance is discretionary, and may be provided up to a maximum amount which is established by the WCB on an annual basis. The evidence shows that in this case, the worker has been issued the maximum annual clothing allowance which is allowed under the Policy, being $342 in 2020 and $343 in 2021.
The panel has not identified any other provision in the Act or Policy which would apply in these circumstances and permit an additional amount to be paid for the clothing which the worker requires as a result of his injury.
While the panel is sympathetic to the worker in these circumstances, we are bound by the clear wording of the Policy which does not allow for an additional clothing allowance beyond the maximum allowable amount as set out in the Policy.
Based on the foregoing, the panel finds that payment of an additional or increased annual clothing allowance is not permitted under the Act or Policy. The worker is therefore not entitled to an additional annual clothing allowance.
The worker's appeal is dismissed.
Panel Members
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of February, 2022