Decision #96/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility would not be accepted for the purchase of a replacement tractor with a snow blower attachment. A videoconference hearing was held on June 28, 2022 to consider the worker's appeal.
Whether or not responsibility should be accepted for the purchase of a replacement tractor with a snow blower attachment.
Responsibility should not be accepted for the purchase of a replacement tractor with a snow blower attachment.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 14/00 dated February 9, 2000. The background will therefore not be repeated in its entirety.
On January 25, 1995, during the course of his employment, the worker bent over to pick up a piece of cardboard when he felt a click in his back. The worker was subsequently diagnosed with a compensable L4-5 disc herniation. Restrictions to avoid lifting more than 30 pounds and to refrain from frequent bending, twisting and stooping were provided.
On November 9, 1998, the worker advised the WCB that he had purchased a new house with a bigger driveway and sidewalk. The worker stated he felt unable to clean and maintain the area during the winter season, and requested the WCB cover the cost for snow removal.
On November 21, 1998, the WCB advised the worker that they were unable to accept responsibility for the costs of snow clearing. On January 22, 1999, the worker requested that Review Office reconsider the WCB's decision. The worker expressed concern that his attempting to clear snow could exacerbate his compensable injury and require him to take more time off work.
On February 12, 1999, Review Office denied the worker's appeal. Review Office indicated that it must first be determined whether the expense the worker was requesting was a direct consequence of his compensable accident. Review Office considered that costs arising from a worker's personal choice or change in circumstances unrelated to the compensable accident were not the responsibility of the WCB. Review Office determined that as the worker had incurred the need to employ snow removal services as a result of a change of residence subsequent to his accident, the WCB had no responsibility for such services.
On March 17, 1999, the worker indicated that the amount of snow was the same at both his old and new residences, just in different areas, and requested that Review Office revisit their decision. On November 8, 1999, a review officer took photographs of both residences.
On November 12, 1999, Review Office determined that the worker should be provided with limited snow removal services. Review Office indicated that the area requiring snow removal at the old residence was not inconsequential, and the worker's compensable physical condition was such that he would have qualified for snow removal had he not relocated. Review Office was of the view that the new residence required considerably more snow removal than the old residence, and that the WCB had no responsibility for this increase. Review Office considered that the WCB should pay 50% of the snow removal costs of the primary use areas at the new residence after a sufficient snow fall, as not doing so would result in significantly increased lack of access for the worker. Review Office stated, however, that the WCB was not financially responsible to assist the worker in keeping all the areas of his property snow free.
Subsequent documentation showed the worker felt he should be reimbursed 100% instead of 50% for costs associated with snow removal, and the worker's representative appealed Review Office's decision to the Appeal Commission.
A file review was held, and on February 9, 2000, the Appeal Commission determined that the worker should be provided with full snow removal services. The appeal panel noted there was no dispute that the worker's physical restrictions precluded him from shoveling snow, and that photographs of the worker's former and current residence did not demonstrate a significant increase in total area requiring snow removal. The panel accepted the worker's evidence that it would take approximately the same amount of time to clear the sidewalks and driveways of snow at either residence, and found that the worker should be provided with full snow removal.
In December 2000, at the worker's request, the WCB approved the purchase of a riding tractor with a snow blower attachment in lieu of an independent living allowance (ILA) for snow removal.
In 2011, the worker's file was reviewed to determine his functional abilities and whether he was entitled to a permanent partial impairment award. On June 29, 2011, the WCB outlined the following permanent restrictions for the worker:
Self reporting sitting standing 20-25 minutes.
Walking occasional, cannot stoop, crouch, occasional stair climbing.
Able to push 88 pounds, pull 64 pounds.
Bilateral grip strength is good left 138 pounds right 168 pounds.
Carrying up to 30 pounds frequent at medium strength demand and up to 40 pounds occasional.
Lifting waist to shoulder 40 pounds occasional 30 pounds frequent at medium strength demand.
Lifting floor to waist 20 pounds occasional 10 pounds frequent at light strength demand.
Lifting floor to shoulder 30 pounds occasional 15 pounds at medium strength demand.
On September 2, 2011, the WCB spoke with the worker with respect to his entitlement to snow removal services during the winter and a request he had made for the purchase of a new snow blower. The WCB asked a rehabilitation specialist to assess the worker's needs, and on September 23, 2011, a home visit took place. In her report following that visit, the rehabilitation specialist recommended that "The most cost-effective option for snow removal is replacement of his riding tractor with snow blower attachment." On November 16, 2011, the WCB advised the worker that they had determined the purchase of a new tractor/snow blower was appropriate and a riding tractor with a snow blower attachment was purchased in lieu of providing an ILA.
On March 22, 2021, the worker contacted the WCB and requested a new tractor, indicating the one he had was "…causing him problems and keeps quitting on him. It will run and then quit. He has had it repaired and it does not fix the problem." The WCB asked the worker to get quotes for replacement machines for their review, and the worker provided two quotes on March 29, 2021.
On April 1, 2021, the WCB contacted the worker to request further information, and advised that a new home assessment would be required as it had been ten years since the last one. The worker responded on the same date, indicating he still had permanent restrictions, he was currently employed, and his job duties did not involve shoveling. The WCB rehabilitation specialist reviewed the worker's file and placed a report to file on May 11, 2021, in which she opined that the worker's restrictions precluded him from performing snow clearing. The specialist noted it was the worker's responsibility to provide three estimates for snow clearing, and the decision to purchase a new tractor as requested by the worker in lieu of providing the ILA for snow clearing would be an exceptional circumstance to be adjudicated by the worker's WCB case manager.
On May 13, 2021, the WCB case manager contacted the worker and requested he provide three estimates for snow clearing, following which the WCB would provide a decision on the most cost-effective method for his snow removal entitlement. The worker provided the WCB with three different quotes in June 2021.
On July 16, 2021, the WCB advised the worker that based on the quotes he provided, he would be entitled to $275.00 per month for snow clearing, in lieu of a replacement tractor, as there were reliable snow removal companies which serviced his area.
On August 31, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that it would be more cost-effective over a ten year period for the WCB to purchase a new tractor and that having a company clear his snow compared to being able to do it himself with a tractor/snow blower combination would leave him reliant on the company to clear the snow in a timely manner.
On September 14, 2021, Review Office determined that the worker was not entitled to coverage for the purchase of a new tractor with a snow blower attachment. Review Office acknowledged that the worker's permanent restrictions supported the worker was unable to shovel his own snow and that past decisions allowed the purchase of a tractor for the worker to perform this activity, but noted that this was not a precedent decision. Review Office noted the current WCB policy states that to support coverage for specialty equipment, such as a tractor, the worker has to qualify under exceptional circumstances as outlined in the policy. Review Office found the worker's situation did not meet the criteria of a severe and permanent injury under the policy, and a monthly ILA for snow removal services was sufficient, would be monitored annually and could be adjusted to reflect any change in restrictions or change of residence on a going forward basis.
On April 19, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies of the WCB's Board of Directors. The provisions of the Act which were in effect as of the date of the worker's accident are applicable.
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(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, as a result of an accident, the worker "requires assistance to reduce or remove the effect of a handicap resulting from the injury" or "requires assistance in the activities of daily living."
The WCB Board of Directors has established Policy 44.120.30, Support for Daily Living (the "Policy"), which applies for all decisions on or after March 1, 2014. The "Policy Purpose" section of the Policy 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 provides that decisions about whether to provide assistance, as well as about the type, level and duration of assistance, are made on a case-by-case basis, but that all decisions are guided by a number of general criteria. These criteria include 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 they engaged in prior to the injury, where those costs arise because of the injury.
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. …
8. 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 or designate.
Administrative Guidelines, as set out in the Policy, build on 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 provided to the worker to pay providers."
The worker was represented by a worker advisor, who provided several written submissions in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.
The worker's position is that the purchase of a tractor with a snow blower attachment is consistent with the Policy and the most cost-effective method for providing snow removal to which the worker is entitled, and his appeal should be allowed.
The worker's representative noted that the worker's entitlement to full snow removal under the Policy was confirmed by the Appeal Commission in their February 9, 2000 decision. The representative submitted that the purpose of the Policy is to provide injured workers with the assistance they require for daily living, and the Policy directs the WCB to provide that assistance in the most cost-effective way possible. It was submitted that the purchase of a garden tractor with a snow blower attachment is the most cost-effective way to provide that service in this case.
The representative submitted that the worker's current tractor and snow blower are now unreliable. The representative noted that historically, the tractors provided 10 years of snow removal and the WCB determined it was reasonable to replace a tractor of this age. The worker obtained three quotes for snow removal at the WCB's request, all of which showed that contracted snow removal was more costly than using a tractor.
Beyond that, the worker had repeatedly stated he could not procure snow removal in his community. After the Review Office decision, the worker reached out to the companies who had provided quotes, one of whom provided a letter indicating they were unable to provide services, while the other two advised that they were unwilling to provide services but refused to provide a letter to that effect.
It was submitted that the Policy allows for the purchase of a tractor and snow blower attachment as the only feasible option for the snow removal to which the worker is entitled. The representative submitted that while the Policy does not specifically address tractors or snow blowers, the spirit of the Policy is to ensure that workers are able to engage in the activities required for daily living, and in this case, the worker needs the snow cleared to safely access his home and safely leave his home to attend work.
Alternatively, it was submitted that if the panel found such a purchase was beyond what is outlined in the Policy, the worker's appeal should be allowed based on exceptional circumstances. The representative submitted that exceptional circumstances under the Policy are not limited to situations where the worker has a severe and permanent injury, and support for specialty equipment can be provided, and should be provided in this situation under the exceptional circumstances provision of the Policy.
In conclusion, the worker's representative noted that the WCB previously funded a tractor with a snow blower attachment twice, and the worker's situation has not changed. He still needs snow removal, but cannot obtain it. While this may not be rural property, the evidence shows it is more difficult to procure snow removal in this area, and the WCB indicated there should be some leeway in providing this assistance. It was submitted that the tractor not only affords the worker the ability to safely access his home, but also enables him and his family to go to work.
The employer did not participate in the appeal.
The issue before the panel is whether or not responsibility should be accepted for the purchase of a replacement tractor with a snow blower attachment. For the worker's appeal to be successful, the panel must find that support for the purchase of a tractor with a snow blower attachment for snow removal purposes is consistent with the Act and the Policy. Based on our review and consideration of all of the evidence and submissions which are before us, and for the reasons that follow, the panel is unable to make that finding.
The panel acknowledges the worker has permanent restrictions as a result of his compensable back injury and remains unable to shovel his driveway and sidewalk. In Decision No. 14/00, the Appeal Commission determined that the worker should be provided with full snow removal services. Subsequent to that decision, the WCB provided the worker with a tractor with a snow blower attachment, and the worker is now seeking coverage for a replacement tractor and snow blower attachment for snow removal purposes.
The Policy states that decisions about the type, level and duration of assistance are made on a case-by-case basis and are guided by a number of general criteria, 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."
While the worker's representative has urged the panel to determine that the purchase of a tractor and a snow blower attachment is the most cost-effective method for providing snow removal in this case, as calculated over a period of several years, and that the WCB should therefore cover the cost of such a purchase in lieu of providing a monthly allowance, the panel is of the view that we are not in a position to make such a determination with respect to WCB financial expenditures. The panel does not see it as our role to monitor or manage WCB expenditures or assessments with respect to cost-effectiveness, and would be reluctant to make a finding of fact in this regard based on the limited information which is before us.
The panel further notes that, as indicated above, Administrative Guidelines under the Policy outline that the level of ILA assistance is based on grids developed by the WCB for this purpose and the general method or norm for administering long-term assistance is to provide an allowance to a worker to pay service providers.
In assessing the worker's entitlement to an ILA in this case, the WCB consulted the rehabilitation specialist, who reviewed the worker's file and determined there were snow clearing services in the area. Noting that the worker's residence was not located in a remote community, the WCB acknowledged that the property was nevertheless outside city limits, and indicated that a certain leeway could be allowed in identifying an appropriate allowance for snow removal services. Based on quotes the worker provided, the WCB therefore approved a monthly allowance which was higher than the urban amount noted in the grid.
While the worker's representative further submitted that the worker has repeatedly advised he was unable to procure snow removal in his community, noting the companies who provided quotes had since indicated they were unwilling or unable to provide services, the panel is not satisfied that the worker cannot obtain snow removal services in this area or that all possible options for snow removal have been exhausted.
In response to comments from the panel that snow clearing is not always done by a professional company and that other possible scenarios might include neighbours and students, the worker said he did not want to rely on his neighbours. He also indicated that he was on emergency call in the winter, and that a student would not be coming in the early morning hours to get him cleared out before he could go to work.
The worker further stated that he had got quotes from other companies, but the ones he provided were "the only ones that were in reach for compensation, and they just didn't want to do it" and that "They don't want to do residential. There's no money involved in…residential." The worker also commented that by the time the snow removal companies could get to his place, he would be late for work, and his family would be too. The worker said he cannot afford to lose time because he is snowed-in.
The worker said that with the tractor, he would go out and blow his driveway late at night or in the middle of the night so there was little snow in the morning and he could get to work. With respect to emergency calls or his need to get out after a heavy snowfall, the worker acknowledged, in response to questions from the panel, that while he cleared his driveway, the street would not have been cleared, but added that the snow "doesn't blow in as thick as it does in the yard. Being in a corner lot. There's times that there is some big drifts, but my truck can go through, and if I can't make it to work, the loaders sometimes – one time the loader came and picked me up…" The worker further noted that "if there was times (sic) that the roads were blown in, our supervisor…he's come with the loader and cleared one trail to get me out to work…"
The panel notes that the Policy speaks to providing assistance for activities required for daily living, including safely accessing the primary residence and routine travel outside the home. The panel paid particular attention to the worker's comments with respect to emergency calls in winter, but is not satisfied that use of a tractor with snow blower attachment would remedy access to or from the worker's property in a snowstorm. The panel is satisfied that providing an allowance for snow removal is consistent with what is outlined in the Policy.
In the alternative, the worker's representative submitted that the worker's appeal should be allowed based on exceptional circumstances. The panel is unable to accept that submission. The panel is not satisfied that the facts of this case qualify as exceptional circumstances under the Policy. The panel is not satisfied that the worker's injury meets the criteria of a severe and permanent injury, such as is contemplated under that paragraph in the Policy. Further, the worker is not located in a remote or isolated location, and as indicated above, the panel does not accept that the evidence establishes the worker is unable to retain snow removal services in that area.
Based on the foregoing, the panel finds that support for the purchase of a tractor with a snow blower attachment for snow removal purposes is not consistent with the requirements of the Act and the Policy. The panel therefore finds that responsibility should not be accepted for the purchase of a replacement tractor with a snow blower attachment.
The worker's appeal is dismissed.
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 26th day of August, 2022