The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that: 

1. They are not entitled to coverage for snow removal/lawn care; and

2. They are not entitled to coverage for modifications to their motorcycle.

A videoconference hearing was held on November 16, 2022 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to coverage for snow removal/lawn care; and 

2. Whether or not the worker is entitled to coverage for modifications to their motorcycle.

Decision

1. The panel finds the worker's entitlement to coverage for snow removal/lawn care has not been fully assessed and returns the file to the WCB for further adjudication; and 

2. The panel finds the worker's entitlement to coverage for modifications for their motorcycle has not been fully assessed and returns the file to the WCB for further adjudication.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 25/22, dated March 11, 2022. The background will therefore not be repeated in its entirety.

The WCB accepted the worker’s claim for a full thickness left rotator cuff tendon tear, primary supraspinatus, and partial tear of the infraspinatus tendon as the result of an incident at work on December 12, 2017.

On February 24, 2018, the treating orthopedic surgeon noted a traumatic tear of the worker’s supraspinatus. On March 13, 2018 the worker underwent rotator cuff repair surgery, following which the worker returned to modified duties and continued with physiotherapy and follow-up with the treating family physician and treating orthopedic surgeon.

On October 29, 2018, the treating orthopedic surgeon opined that the worker's rotator cuff had healed, but noted the worker had difficulty raising their arm to shoulder level and reduced range of motion limited by pain. The surgeon recommended the worker continue with physiotherapy in the hopes that the symptoms would diminish, but noted that even if they did not, there was no option for further intervention.

Due to ongoing reports of difficulties, the worker attended a call-in examination with a WCB physiotherapy consultant on December 21, 2018. The physiotherapy consultant indicated the worker had been left "…without functional rotator cuff strength" after the rotator cuff tear repair surgery and noted that the worker would seek a second medical opinion. The consultant recommended funding of home medical equipment and that the worker continue working as tolerated, but that permanent restrictions would likely be required.

A WCB orthopedic consultant reviewed the worker's file on February 28, 2019 and recommended restrictions, likely permanent, of no left upper limb tasks above shoulder level; no repetitive resisted tasks with the left upper limb away from the side of the body; no lifting and carrying more than 25 pounds with the left upper limb; and no pushing and pulling with force greater than 25 pounds with the left upper limb.

On March 21, 2019, the WCB was advised that the employer declared bankruptcy and the worker was permanently laid off. On April 11, 2019, the worker was referred for initial assessment by a WCB vocational rehabilitation ("VR") consultant. The worker completed courses between May and July 2019 to upgrade their computer skills, with discussions ongoing to determine the worker’s desired occupation. During this period, the worker also attempted to obtain work on their own, and in August 2019, secured employment on a casual basis as a pilot driver.

On September 18, 2019, the WCB established a VR plan for National Occupational Classification (NOC) 6552, Other customer and information services representatives for the worker. The plan allowed for a 16-week job search period from October 7, 2019 to January 26, 2020, with a deemed earning capacity of $466.00 per week to be implemented after that date.

On November 4, 2019, the worker requested that Review Office reconsider the WCB's implementation of the VR plan. The worker submitted that the plan did not consider their physical capabilities and mobility issues. On January 6, 2020, Review Office determined that the VR plan was appropriate. Review Office found that the worker's restrictions did not render them totally disabled and met the required demands for occupations in NOC 6552. Review Office concluded that the VR plan in NOC 6552 was based on a realistic goal and was appropriate. The worker appealed to the Appeal Commission on January 14, 2020, and Appeal Commission Decision No. 25/22 of March 11, 2022 determined that NOC 6552 was not appropriate, and the worker’s file was returned to the WCB’s Compensation Services.

The worker contacted the WCB on March 29, 2022 to request assistance with activities of daily living, specifically snow removal and lawn care. The worker noted they had moved to a new home in September 2021 and now required assistance with those tasks. Prior to September 2021, the worker advised they lived in a condominium where snow removal and lawn care were provided. The worker also requested modifications to their motorcycle as they were unable to make a full right turn due to the compensable injury to their left shoulder.

On March 30, 2022, the WCB advised the worker that they were not entitled to coverage for snow removal and lawn care as they were not required to perform those tasks at the time of the workplace accident. The WCB also advised the worker that they were not entitled to coverage for modifications for their motorcycle as there were no medical restrictions in place that would prevent them from driving their motorcycle properly.

On June 1, 2022, the worker requested reconsideration of the WCB’s March 30, 2022 decision to Review Office. In their submission, the worker confirmed that at the time of the workplace accident, they did not require assistance for lawn maintenance as it was managed by the individual owners of the condominium to save costs; however, the worker noted they did assist, with help from other individual owners, the snow clearing for the complex where they resided. With respect to their motorcycle, the worker noted they had owned the motorcycle prior to the workplace accident and used it frequently but due to chronic pain and mobility issues because of the workplace accident, were unable to use the motorcycle and considered selling it. The worker indicated they were advised by a motorcycle technician that modifications could be made that would enable them to ride the motorcycle without further injury.

Review Office determined on June 30, 2022 that the worker was not entitled to coverage for snow removal/lawn care or for modifications to their motorcycle. With respect to coverage for snow removal and lawn care, Review Office found the worker did not incur any expenses to maintain their property at the time of the workplace accident, and that it was the worker’s personal choice to relocate to a larger property and as such, the additional costs to maintain the property are not the responsibility of the WCB. Review Office also determined the worker was not entitled to coverage for modifications to their motorcycle as the motorcycle was a seasonal vehicle and the worker had not requested modifications to their regular vehicle.

The worker filed an appeal with the Appeal Commission on August 2, 2022. A videoconference hearing was arranged for November 16, 2022.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

Section 4(1) of the Act provides that a worker is entitled to benefits under the Act when it is established that a worker has been injured as a result of an accident at work. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act.

Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB has established Policy 44.120.130, Support for Daily Living (the “Policy”) which outlines the 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. While decisions about whether to provide such assistance are made on a case-by-case basis, the general criteria for consideration under this Policy are:

3. The compensable injury must have reduced the worker's ability to engage in the activities required for daily living, which include but are not limited to: 

• …safely accessing the primary residence and portions of the primary residence; and 

• routine travel outside the home. 

4. 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. 

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

6. The WCB is not required to compensate for costs for which it has not provided prior written approval. 

7. The type, level and duration of assistance provided is based on regular, standardized evaluations of the injured worker's needs and abilities, and may be adjusted in keeping with the results of these evaluations.

The Policy also sets out that 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. Further, assistance may be provided for a modified vehicle to allow an injured worker to safely operate a vehicle as part of the requirements of daily living.

The Administrative Guidelines to the Policy confirm that to ensure assistance meets workers' needs, the WCB conducts standardized assessments to determine the type, level and duration of assistance to be provided. The WCB also monitors the worker's medical condition and other circumstances on a regular basis to ensure assistance is adjusted as required. The Guidelines set out that: 

• Assistance for snow removal is limited to the area that is required for safe access to the primary residence. 

• Assistance for grass cutting generally encompasses the whole of the primary residential property (typically a front lawn and/or back yard). However, where the property exceeds the size of the typical residential property, assistance may be limited to an area similar in size to a typical property.

With respect to vehicle modifications, the Administrative Guidelines provide that: 

Assistance for vehicle modifications is provided only in cases of permanent injury, and is based on an assessment of whether the worker can safely operate an unmodified vehicle.

…Where assistance for vehicle modifications is provided, the WCB initially considers whether a vehicle owned by the worker can be appropriately modified.

Worker’s Position

The worker appeared and made submissions on their own behalf and provided testimony through answers to questions posed by the appeal panel. The worker was accompanied by their spouse, who also offered testimony in support of the worker’s appeal and in answer to questions posed by the appeal panel.

The worker’s position with respect to the question of snow removal and lawn care is that they should be entitled to support as the permanent physical limitations arising from the compensable workplace injury prevent them from lifting, shoveling and carrying activities with their left arm. Further, the worker indicated that their injury makes use of a snow blower and lawn mower more difficult such that they require assistance in those tasks. The worker therefore believes that they should be entitled to assistance from the WCB for additional costs incurred in undertaking these home maintenance tasks as their compensable injury makes these tasks difficult to accomplish.

The worker described to the panel that from 2015, their primary residence was in a condominium with their spouse. That property was managed and maintained by the unit owners, who provided services on a volunteer basis for the complex including maintenance, lawn care and snow removal. The worker described helping with snow removal, cleaning the parkade and mowing grass and noted that their participation in these tasks was confirmed by the witness statements submitted in support of the appeal. The worker also indicated that they also owned and helped to maintain a property jointly owned with their parent in another rural community until that property was sold in November 2018. After the injury occurred, the worker described clearing a path in the snow for their spouse to get to work, using a shovel with their right arm only.

The worker further described moving to another rural property in September 2021. When preparing for that move, the worker inquired of the WCB as to assistance with moving costs. On learning that moving costs would not be supported, the WCB adjudicator advised that lawn care and snow removal costs could be covered in some instances. The worker indicated that this conversation in June 2021 was the first time they were made aware of their possible entitlement to assistance for lawn care and snow removal and that they subsequently requested that assistance.

The worker indicated that their current residence is on a large rural lot in a nearby community to where they resided at the time of the accident. The worker described that in winter 2021/22 they could use a snow shovel only with their right arm and could use a snowblower with some difficulty in cranking the auger and without being able to turn it. At times, the worker relied upon a neighbour for assistance with snow clearing. The worker noted they had purchased a self-propelled lawn mower that they were able to steer with one arm but that bagging the clippings with one arm only was challenging.

With respect to the proposed motorcycle modifications, the worker’s position is that the motorcycle is a motor vehicle that they were able to safely operate prior to the injury but cannot safely operate after the injury, and as such, the WCB should support the modifications required to permit safe operation. The worker confirmed that they have been riding a motorcycle since they purchased it in 2016 and used it until the accident for recreation, travel and transport. The worker noted that riding a motorcycle is something that they did with their spouse, who has their own motorcycle. The worker described transporting the motorcycles to another location in the winter of 2016 to use there. Since the injury, the worker has attempted to ride but found it was not safe as they could not turn right. The worker explained that to complete a right turn, they need to fully extend their left arm with the handlebars and that this necessarily removes their injured arm from their body envelope. The worker noted that they learned that the motorcycle handlebars could be modified so that a right turn could be undertaken without the worker having to fully extend their left arm but that they had not looked into the specific costs or appropriateness of doing so.

The worker’s spouse noted that the Policy references modifications can be covered for safe operation of vehicles and noted as well that the Policy Guidelines appear to contemplate support by the WCB to facilitate participation in hobbies and recreation. As a result of their injury the worker can no longer golf, curl, fish or play baseball but they may be able to safely ride their motorcycle again if modifications can be made.

Employer’s Position

The employer is no longer in business and as such is not a participant in the appeal.

Analysis

There are two questions for the panel to determine on this appeal. Both relate to the provision of assistance to the worker to engage in activities of daily living. For the worker’s appeal to succeed, the panel would have to determine that the compensable injury reduced the worker’s ability to engage in snow removal and lawn care activities required for daily living and further that as a result of the compensable injury the worker has sustained a permanent injury that impedes the worker’s ability to safely operate an unmodified vehicle, in this case, a motorcycle. As set out in the reasons that follow, the panel was able to determine that the nature of the support for daily living sought by the worker was compensable but could not determine the worker’s specific entitlements without an assessment being undertaken by the WCB as to the worker’s needs and abilities.

The worker requested that the WCB provide cost assistance for the activities of snow removal and lawn care and for modifications to their motorcycle so that it can be safely operated. Such assistance is available and provided by the WCB as medical aid to cure and provide relief from the effects of a compensable injury. The Policy requires a case by case analysis with reference to the general criterion that the compensable injury must have reduced the worker's ability to engage in the activities required for daily living, which include safe access to their primary residence and routine travel outside the home. Further, the assistance should compensate in the most cost-effective way possible for additional costs the worker incurs while engaging in activities required for daily living that they engaged in prior to the injury, where those costs arise because of the injury. Further, the type, level and duration of assistance provided is based on regular, standardized evaluations of the injured worker's needs and abilities, and may be adjusted in keeping with the results of these evaluations.

The panel therefore first considered the nature and extent of the worker’s compensable injuries as outlined in the recent medical reports in evidence. The panel reviewed the findings from the permanent partial impairment examination of the worker of June 1, 2022 and noted that the WCB determined that the worker has permanent impairment in relation to their left shoulder of 10.9%, of which 50% was attributed to the compensable workplace injury. The panel also noted the January 10, 2022 report from the treating family physician which indicates the worker should severely limit their use of their left arm and that the worker is not able to lift, shovel or carry. An October 19, 2021 chart note from the treating orthopedic surgeon indicated left shoulder findings of 80 degrees elevation, increasing passively to 100 degrees, 40 degrees of external rotation increasing passively to 60 degrees and internal rotation to L5. The chart notes further indicated pain with all shoulder movement and a painful arc with scapulothoracic dyskinesia. The surgeon confirm there is little they can do to address the worker’s pain. The August 18, 2021 review by the WCB physiotherapy consultant noted that the worker had reached maximum medical improvement and that no significant change in pain and function had been noted since the July 2020 surgery and no further surgery was recommended. A February 24, 2021 chart note from the treating orthopedic surgeon indicated the worker’s “restrictions in terms of minimal use of [their] left arm are permanent.” The permanent restrictions established for the worker in June 2020 were for no tasks with the upper limb above shoulder level, no repetitive tasks with the left upper limb away from the side of the body, no lifting and carrying more than 25 lbs. with the left upper limb and no pushing or pulling with force greater than 25 lbs. with the left upper limb.

The Policy also requires that the assistance be in relation to 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. The evidence before us confirms that prior to the injury, the worker engaged in activities related to snow removal and lawn care on an as needed basis. The condominium complex where the worker resided with their spouse at the time of the accident engaged residents in grounds-keeping including lawn care and snow removal. Although the worker was not required to participate in such activities, the evidence confirms that the worker did so, including mowing the lawn and clearing snow at stairway entry points, in parking lots and the indoor lot entrance ramp. The worker confirmed in their evidence that they moved to another residence with their spouse in September 2021 and that there is a need for snow removal and lawn care at this residence. The worker noted they are not able to turn a snow blower and can only crank the blower auger with difficulty. The worker indicated they can shovel only with one arm. In terms of lawn care, the worker explained that they purchased a self-propelled mower that they can steer with one arm but bagging the clippings is a challenge. The worker also testified that they purchased a motorcycle in 2016 and used it for transport and travel with their spouse who also rode a motorcycle. The worker indicated that they are not able to safely make a right turn with the motorcycle since the injury as such a turn requires full extension of their left arm away from their body envelope. Although the worker noted they are only able to use their motorcycle in the summer months in Manitoba, they did transport it for use in winter of 2016 in another location.

The panel is satisfied on the basis of the medical evidence before us that the worker’s injury is permanent. We are further satisfied that the medical evidence confirms that the compensable injury has reduced the worker's ability to engage in the activities required for daily living, including shoveling, lifting and carrying activities.

The panel is satisfied that the evidence establishes that the worker engaged in activities of lawn care and snow removal prior to the injury and that the compensable injury has limited the worker’s ability to engage in those activities so as to maintain safe access to their primary residence. The panel does not find that the fact the worker voluntarily changed their primary residence disentitles them to support for lawn care and snow removal under the Policy. The panel is unable to determine the extent of the worker’s limitations in respect of lawn care and snow removal or their needs in respect of these activities as the WCB has not undertaken such an assessment. The panel therefore directs the WCB to undertake the necessary assessments to determine the extent and nature of assistance required.

The panel is also satisfied that the evidence establishes that the worker owned and rode a motorcycle prior to their injury and that the motorcycle is a motor vehicle as referenced in the Policy. The panel noted that the Policy does not exclude the modification of a non-primary, or seasonal motor vehicle. The panel, however, is unable to determine whether the worker can safely operate their unmodified motorcycle as the WCB has not undertaken such an assessment. The panel therefore directs the WCB to undertake this assessment and determine the extent and nature of modifications that might be required.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of January, 2023