Decision #37/23 - Type: Workers Compensation

Preamble

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

1. They are not entitled to benefits beyond January 7, 2022 under WCB policy 44.30.60, Notice of Change in Benefits or Services; and 

2. The independent living allowance (ILA) is correct.

A videoconference hearing was held on January 24, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits beyond January 7, 2022 under WCB policy 44.30.60, Notice of Change in Benefits or Services; and

2. Whether or not the worker’s independent living allowance (ILA) is correct.

Decision

1. The worker is entitled to wage loss benefits beyond January 7, 2022 under WCB policy 44.30.60, Notice of Change in Benefits or Services; and 

2. The panel is unable to make a determination on this issue and returns the file back to the WCB's Compensation Services.

Background

This claim has been the subject of a previous appeal, in Appeal Commission Decision No. 02/22, dated January 7, 2022, and therefore the background is not repeated in its entirety.

On August 26, 2019, the WCB received an Employer's Accident Report indicating the worker injured their right ankle at work on August 25, 2019. The report noted the worker was performing their job duties and while doing so, "…stepped in a hole and rolled his right ankle and fell to the ground." The worker was taken to the local nursing station where they were diagnosed with an ankle sprain and then to a local hospital for x-rays to rule out a fracture. The August 25, 2019 Emergency Treatment Record noted that the x-ray taken did not indicate any fracture or dislocation and the treating physician diagnosed right ankle sprain, prescribed medications and recommended the worker rest, elevate and ice their ankle. The physician also referred the worker to physiotherapy and outlined restrictions, noting the worker was capable of sedentary work.

When the worker contacted the WCB on August 26, 2019 to discuss their claim, they advised that they were in a lot of pain and needed to elevate their foot and noted concerns with modified work and recovery, advising they believed they would recover better at home. On August 27, 2019, the employer provided the WCB with a list of the modified duties available and confirmed they could accommodate the worker.

On August 28, 2019, the WCB advised the worker the claim was accepted for a right ankle strain injury, but that the worker was not entitled to wage loss benefits as the medical evidence did not support total disability from work and the employer could accommodate the worker within the restrictions provided. The worker continued to receive medical care and on initial physiotherapy assessment on October 1, 2019, new restrictions were recommended. On October 7, 2019, the WCB advised the employer of the worker's restrictions.

On October 11, 2019, the worker's representative requested that Review Office reconsider the WCB's decision that the worker was not entitled to wage loss benefits and submitted additional information on October 14, 2019. Review Office returned the worker's file to Compensation Services for further investigation.

On October 16, 2019, the employer confirmed that modified duties remained available and they could accommodate the worker within the restrictions, providing a description of the duties.

On October 30, 2019, the treating family physician referred the worker for an MRI and on the same date, the worker reported to the treating physiotherapist that they had rolled their ankle approximately 10 days previously, causing extreme pain and swelling for about one week with mild bruising. The worker noted that since then, their mobility was very limited, with increased pain in the right posterior lateral ankle. The physiotherapist provided a diagnosis of possible grade 3 ankle sprain affecting the calcaneofibular and post talofibular ligaments and provided further restrictions for four weeks. The right ankle MRI study of November 19, 2019 indicated "High-grade strains of the anterior talofibular and calcaneofibular with less severe of the deep deltoid" and "Focal chondromalacia of the anterior central tibial plafond with small bone bruise in the lateral taler doma".

A WCB orthopedic consultant reviewed the worker’s file and recent MRI results on November 27, 2019 and concluded the current diagnosis was "…an unhealed essentially complete tear of the lateral ligament of the right ankle at the anterior talo-fibular (ATFL) component", supported by the findings on the MRI and which was the likely cause of the worker's ankle instability. The WCB orthopedic consultant opined that the ATFL tear was probably the result of the August 25, 2019 workplace accident, and that the worker’s recovery was not satisfactory and that surgical reconstruction of the ATFL ligament should be considered. The consultant concluded the diagnosis would not cause total disability, and recommended restrictions, to be reviewed in three months.

On December 12, 2019, the employer provided the WCB with a copy of a Notice of Layoff for the worker effective December 19, 2019, described as due to reduction of crew. By letter dated December 18, 2019, revised on December 20, 2019, the WCB advised the worker that after a further review of their file, there would be no change to the decision they were not entitled to wage loss benefits effective August 26, 2019.

On January 15, 2020, the employer advised the WCB that they could immediately accommodate the worker within their restrictions, and on the same date, the WCB confirmed this to the worker and their representative. On June 17, 2020, the treating family physician provided restrictions of light duty, limited hours, no excessive walking, climbing stairs or heavy lifting. On June 18, 2020, after a discussion with the worker's family physician to clarify the restrictions, the WCB advised the worker and the employer of the temporary restrictions of sedentary duties, no excessive walking, no climbing stairs and no heavy lifting. On June 19, 2020, the employer provided the WCB with a modified work offer to provide to the worker, and the WCB forwarded that offer to the worker and representative. On June 22, 2020, the worker advised they would not be returning to work for the employer. On June 23, 2020, Compensation Services advised the worker that the earlier decisions they were not entitled to wage loss benefits remained unchanged, as the worker had declined the modified duties offered by the employer. On July 15, 2020, during discussions with the WCB regarding the worker's possible return to work, the employer indicated that despite a reduction in their workforce at the site where the worker was working, they were still able to accommodate the worker within their restrictions.

On August 17, 2020, the worker's representative requested that Review Office reconsider the WCB's decision to deny entitlement to wage loss benefits. On August 25, 2020, Review Office returned the worker's file to Compensation Services for further investigation. On September 2, 2020, the WCB's orthopedic advisor provided a further opinion that the August 25, 2019 workplace injury resulted in a complete tear of the lateral ligament of the right ankle which would be expected to cause ankle instability when walking. The orthopedic advisor noted there is no potential for healing of the ligament when the torn portions are separated, as demonstrated and that even after surgical intervention, some instability often persists. They recommended restrictions noting that these would be long-term, and that there was no medical need to specify reduced hours.

On October 30, 2020, after gathering additional information, the WCB advised the worker they were not entitled to wage loss benefits from August 26, 2019 to June 14, 2020, but were entitled to partial wage loss benefits from June 15, 2020 to October 2, 2020. The WCB determined that suitable modified duties were offered beginning August 26, 2019 and the employer was willing and able to accommodate the worker's concerns to provide a safe return to work.

On November 20, 2020, the worker's representative requested reconsideration of several WCB decisions to Review Office. On November 24, 2020, Review Office acknowledged receipt of the request to reconsider the worker's entitlement to wage loss benefits effective August 26, 2019. On January 27, 2021, Review Office determined there was entitlement to wage loss benefits effective August 26, 2019. Review Office found that based on the medical information on file, the worker was not fit for work between August 26, 2019 and September 30, 2019 as the evidence supported a finding of total disability, and as such, the worker was entitled to wage loss benefits for this period. For the period from October 1, 2019 to December 3, 2019, Review Office found while the employer provided modified duties, a worksite assessment had not been completed and the duties offered had not been properly assessed and it was therefore reasonable for the worker to refuse. For the period from December 3, 2019 to 19, 2019, Review Office determined the accommodated duties were outside the worker's capabilities and the worker was therefore also entitled to wage loss benefits for that time. Review Office further found that effective December 20, 2019, the employer had provided the worker with a notice of layoff which terminated the employment relationship between the worker and the employer, and the worker therefore had a loss of earning capacity and the worker was entitled to wage loss benefits as of that date.

On June 9, 2021, the employer appealed the Review Office decision to the Appeal Commission and a hearing was arranged for November 10, 2021. On January 7, 2022, in Appeal Commission Decision No. 02/22, the Appeal Commission determined the worker was not entitled to wage loss benefits effective August 26, 2019.

When the WCB contacted the employer on January 11, 2022, the employer confirmed that modified duties were still available for the worker, and further advised that due to the COVID-19 pandemic, all workers must be fully vaccinated to work on site and travel. The WCB provided the worker and their representative with a copy of the modified work offer and advised of the vaccination requirement on January 12, 2022. At the request of the worker's representative, the WCB provided the worker and the representative with a decision letter on January 18, 2022, advising that pursuant to Appeal Commission Decision 02/22 dated January 7, 2022, the worker's entitlement to wage loss benefits ended on that date as the Appeal Commission determined the worker was not entitled to benefits effective August 26, 2019. Nonetheless, in accordance with its discretion under the WCB’s Notice of Change in Benefits or Services Policy, the WCB advised they would be providing wage loss benefits to the worker to and including January 24, 2022.

On January 21, 2022, the worker’s representative requested Review Office reconsider the WCB’s decision to Review Office. The representative referred to the January 18, 2022 letter from the WCB and the advice the employer would require the worker to be fully vaccinated against COVID-19 and indicated this did not allow sufficient time for the worker to be fully vaccinated in order to return to work on January 8, 2022. The representative argued that pursuant to the Notice of Change in Benefits or Services Policy, the worker met the exceptional circumstances criteria under the policy as they had been in receipt of wage loss benefits for more than two consecutive years.

On January 25, 2022, the Review Office confirmed the issue under appeal, which was noted to be “…whether or not the implementation of Board policy 44.30.60, Notice of Change in Benefits or Services, was appropriate” which was confirmed with the representative on the same date.

When the worker underwent surgery on February 12, 2022, the WCB provided full wage loss benefits. Following the surgery, a WCB rehabilitation specialist reviewed the worker’s file regarding personal care and an independent living allowance entitlement. On March 1, 2022, the WCB advised the worker they were entitled to independent living and personal care allowances as follows for the period of February 14, 2022 to March 25, 2022, based on the advice of the worker’s treating orthopedic surgeon that they were to remain non-weightbearing for 6 weeks post-surgery:

• Meal preparation: 4 hours/week 

• Grocery shopping/community outings: 3 hours/week 

• Laundry: 1 hour/week 

• Housekeeping: 1 hour/week 

• Snow clearing: 1 hour per snow clearing

On March 2, 2022, the worker’s representative requested Review Office also reconsider the WCB’s decision on the amount of personal care allowance and independent living allowance provided to the worker, noting the hours provided did not allow the worker to complete all their necessary tasks.

On March 31, 2022, Review Office determined that the worker was not entitled to wage loss benefits after January 7, 2022 and that the worker’s independent living allowance was correct. With respect to wage loss benefits, Review Office disagreed with the WCB’s discretionary decision to allow the worker additional wage loss benefits after January 7, 2022 to January 24, 2022 as the Appeal Commission decision established that the worker was not entitled to wage loss benefits after the date when the employer offered the worker an accommodated position, which the worker did not accept. Further, Review Office found the employer’s vaccination requirement to be related to the employment relationship and therefore was not a matter for the WCB to consider. Regarding the request for additional independent living allowance, Review Office found there was no evidence to support the worker required additional hours for the allowance. The worker provided details of their daily tasks and indicated they are performing those tasks but at a reduced pace; however, Review Office found that did not entitle the worker to additional entitlement to more independent living allowance. Review Office concluded the independent living allowance was correct and would be reviewed at six months’ post-surgery.

The worker’s representative filed an appeal with the Appeal Commission on June 28, 2022. A videoconference hearing was arranged for January 24, 2023. 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 March 20, 2023, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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.” Section 39(2) of the Act sets out that wage loss benefits are payable until the loss of earning capacity ends, as determined by the WCB or until the worker attains the age of 65 years.

The WCB established Policy 44.30.60, Notice of Change of Benefits (the “Notice Policy”) to describe when and how notice of a loss in benefits, payments or services will be provided by the WCB. The Notice Policy sets out the following general principles:

a. When the WCB is making a discretionary decision to change benefits, payments or services, "advance notice" will be provided to the worker, employer and healthcare provider. This means that the person(s) will be advised of the change before it is actually made. This notice gives clients an opportunity to consider how they may be affected and what alternative arrangements may be needed before the change is made. This notice also gives the client time to provide any additional information before the decision is implemented. 

b. When the WCB must make the change to comply with the Act or WCB Policy "deemed notice" is provided through the Act, WCB Policy Manual or other WCB publications. This means that the change may be made without advance notice. In these cases, the Act, WCB Policy or WCB publication is "deemed" to provide advance notice. .

c. Even when advance notice is not required, the WCB will make best efforts to tell the person that a change is coming before the change is actually made. In any event, the change will be made as required.

The Notice Policy states that the period of notice will normally be seven calendar days, extended for each statutory holiday that falls within the notice period, beginning from the date of the notice letter or the date when verbal notice is provided and that the change in benefits or services will come into effect after the notice period is over. In exceptional circumstances, additional notice may be provided before a change in benefits or services is made, but the total period of notice will not exceed 12 weeks. This may apply in the following situations:

• The worker has received wage-loss benefits for more than two consecutive years, relies on the benefits for the necessities of life and has no sources of alternative assistance; or, 

• An extended period of notice is essential to assist the worker's employment capability and will likely prevent a further injury; or, 

• The WCB has committed to a program of medical, physical or vocational rehabilitation which is expedient and cost-effective to continue.

The WCB has also established Policy 44.120.30, Support for Daily Living (the “Support 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:

• 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: 

• personal hygiene; 

• toilet functions; 

• grooming; 

• dressing; 

• preparing food; 

• eating; 

• housekeeping; 

• child/other dependent care; 

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

• routine travel outside the home. 

• 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. 

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

• 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 Support 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. 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. Eligibility for personal care and independent living assistance is based on the general criteria outlined in this policy and on needs assessments conducted by the WCB with the participation of the worker. 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.

For personal care assistance and independent living assistance, the level of assistance “is based on grids developed by the WCB for this purpose….”

Worker’s Position

The worker appeared in the hearing with legal counsel who made an oral submission on behalf of the worker and relied as well upon their June 12, 2022 written submission to the Appeal Commission. The worker provided testimony through answers to questions posed to them by their counsel and by members of the appeal panel. The worker’s counsel also provided a further written submission, dated March 3, 2023, in response to the additional information obtained by the Appeal Commission from the WCB subsequent to the hearing date.

The worker’s position with respect to the question of appropriate notice for the change in benefits resulting from the Appeal Commission decision of January 7, 2022, is that a period of 7 days’ notice is not appropriate where, as here, exceptional circumstances exist in that the worker has relied on wage loss benefits for in excess of 24 months and further, has the additional new workplace requirement for vaccination before returning to work.

The worker’s position with respect to the independent living allowance is that it was not correctly determined in that it does not take into account the worker’s actual needs and is not sufficient to meet the worker’s actual needs.

In oral submissions, the worker’s counsel highlighted their disagreement with the findings and reasoning of the Review Office in its March 31, 2022 decision noting that the Review Office did not agree with the WCB’s use of the discretionary extension of notice provision in the Notice Policy to provide wage loss benefits to the worker beyond January 7, 2022. Counsel argued that Review Office incorrectly emphasized the ability of the employer to accommodate the worker’s restrictions and further, wrongly stated that employment requirements and process are not administered under the provision or guidance of the WCB, providing a series of examples of where the WCB did involve itself in the administration of employer/employee matters in respect of the worker’s claim. With respect to the employer’s requirement for vaccination, the worker’s counsel noted that the employer ought to have informed the worker of this policy in 2021 if of the view that the worker was still their employee at that time, but that the employer failed to provide such notice. Further, the worker’s counsel noted that based upon the January 27, 2021 decision of the Review Office, the worker’s employment relationship was determined to be severed as of December 20, 2019 and as such the worker had not remained in communication with the employer; however, if the WCB had determined at that time that the worker remained an employee, then the employer would have been obligated to inform the worker of this requirement well before January 2022 and the worker would have had opportunity to comply with the requirement or to make another choice.

The worker’s position is that they were entitled to notice of the termination of their wage loss benefits under the Notice Policy from January 8, 2022 to the date of their compensable surgery on February 12, 2022. The Notice Policy provisions with respect to required notice apply as the worker was in receipt of wage loss benefits for well over 24 months, and the provision for extension of the notice period in exceptional circumstances applies in this case as the worker received benefits for more than two consecutive years, relied on those benefits for the necessities of life and had no sources of alternative assistance, and did not have sufficient time to become fully vaccinated as required by the employer, given that the worker’s surgery was scheduled to take place on February 12, 2022.

In respect of the worker’s entitlement to independent living and personal care allowances, the worker’s counsel noted that the worker provided evidence through their emailed responses to the questions posed by the WCB and that this evidence ought to be sufficient for the WCB to base its determination of the worker’s needs for personal care and independent living supports following their surgery. The worker’s position is that the allowances provided by the WCB are not enough to provide the help the worker needed, nor sufficient to hire anyone to provide that help. The worker’s counsel stated that in the geographic region where the worker resides, it is “impossible to hire anyone for an hour here and a few hours there at minimum wage to come out and assist” the worker. Counsel argued that reasonable coverage is required, even if it does not provide complete financial coverage.

The worker’s counsel outlined the worker’s position that it would be reasonable for the WCB to provide personal care and independent living allowances based on the information provided by the worker as to their specific needs, being:

• Meal preparation: 7 hours/week 

• Grocery shopping/community outings: 5 hours/week 

• Laundry: 6 hours/week 

• Housekeeping: 4 hours/week 

• Snow clearing: 4 hours per snow clearing

The worker’s counsel noted that the worker does not live in a town but in a rural area and noted the difficulty of finding someone to come out to the worker’s home daily to assist for just a short time, as allowed for by the WCB decision. They pointed out that the WCB’s Support Policy requires the WCB to consider such requests on a case by case basis rather than simply applying a standard formula.

In response to questions posted by their representative, the worker described that they have a two-acre property where they live and that it requires 3-4 hours to plow the snow or remove the snow after a snowfall, noting that there has been quite a bit of snow in recent winters. In terms of housekeeping requirements, the worker noted that they like to keep their house clean, and that their housekeeping needs would be greater than 1 hour per week, which the WCB allowed. For laundry, the worker estimated the need for 3 loads per week at 2 hours per load, plus additional time for bedding and towels. The worker confirmed that going into town and coming back for a quick trip takes at least one hour and that a more substantial grocery shopping would require about 2 hours. The worker noted that after the surgery, they were “discombobulated for 10 days” and did not feel like cooking or preparing food. They recalled that a friend would come over and cook once in a while or bring the worker fruit.

In response to questions posed by members of the appeal panel, the worker provided testimony as to their current status, in terms of their ankle injury and functionality as well as their source of income and an additional hip injury that the worker believes is related to the compensable injury. The worker confirmed that they provided information to the WCB about their support needs by email and that the rehabilitation specialist did not come to their home when the assessment was first undertaken nor later. The worker explained that as a result of WCB decisions and actions, they did not feel trust in the WCB sending someone into their home to do an assessment. The worker stated “I could not trust WCB about what they were going to [do]…they’re going to look for things to cut me off at this point, that’s what I felt. …I had no faith or trust in anything that they were going to do.” The worker described that this broken trust extended to anyone who had worked with the WCB and questioned whether there was any independent rehabilitation specialist available for them to select to do the assessment. The worker testified that their property has a driveway about 60 yards long and that there is no sidewalk leading up to their door. The worker confirmed that they had friends come over to assist them after the surgery and that they did not pay them for their help. The worker confirmed that their snow is cleared using “a little plow truck that’s got a plow on it”, which a friend used to clear the snow when the worker was unable to drive because of the cast on their foot.

In response to questions from the appeal panel, the worker’s counsel confirmed their position that the WCB’s Support Policy should be applied with consideration to the specific needs of the specific worker requiring support, and that calculation of needs should also take into account the geographic region where a worker resides as there may be additional regional challenges that require consideration. The worker’s counsel also noted that the worker had not received any payments after their surgery based upon the Support Policy entitlements set by the WCB as the worker did not specifically incur any expenses and therefore could not submit receipts for reimbursement.

In their March 3, 2023 written submission, the worker’s counsel noted that although the WCB outlined that the worker’s Support Policy entitlements were determined based on maximums that “…are based on the average amount of time it takes a caregiver to complete a task without injury” these timeframes are minimums, rather than maximums. Counsel also commented upon the absence of any reference tables in the information provided by the WCB and noted that the WCB’s statements are not backed up and should be given no weight by the appeal panel. The worker’s counsel concluded that “This is one of those instances where WCB can say they assisted the Worker, while knowing full well it is of no assistance at all. In the Worker’s case, these amounts were so paltry, [the worker] was unable to hire anyone. As well, it is more than unrealistic to make an injured Worker, post-surgery create and print invoices to pay Workers.”

In sum, the worker’s position is that they are entitled to additional notice of the termination of wage loss benefits under the exceptional circumstances provision of the Notice Policy, which should be exercised to provide notice to the date of the worker’s scheduled surgery on February 12, 2022. In relation to the determination of the worker’s independent living and personal care allowance entitlements, the worker’s position is that the WCB failed to consider the specific needs of the worker and rather applied a standardized approach that did not adequately provide support to the worker and as such the independent living allowance is not correct.

Employer’s Position

The employer did not participate in the appeal.

Analysis

There are two questions for the panel to determine on this appeal. First, the panel must determine whether the worker is entitled to wage loss benefits beyond January 7, 2022 under WCB Policy 44.30.60, Notice of Change in Benefits. For the worker’s appeal to succeed, the panel would have to find that the Notice Policy requires or permits the WCB to provide wage loss benefits to the worker beyond January 7, 2022 and determine that the worker is entitled to such benefits. As outlined in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal on this question is granted.

Second, the panel must determine whether the worker’s independent living allowance is correct. For the worker’s appeal on this question to succeed, the panel would have to determine that the WCB failed to correctly apply its Support Policy in determining the worker’s specific entitlement in respect of an independent living allowance. As set out in the reasons that follow, the panel was able to make such a finding, but could not determine the worker’s specific entitlements and refers the question of the worker’s entitlement back to the WCB for an assessment as to the worker’s needs and abilities, in accordance with that Policy.

Is the worker entitled to wage loss benefits beyond January 7, 2022?

The worker’s appeal of this question arises out of the WCB’s implementation of the Appeal Commission decision of January 7, 2022 that the worker was not entitled to wage loss benefits effective August 26, 2019. Initially, the WCB advised the worker that their benefits would terminate as of the date of that decision, but on January 18 advised the worker that the Notice Policy applied, and the worker’s benefits would terminate in 7 days, as of January 24, 2022. Review Office found that this was not an appropriate interpretation of the Notice Policy by the WCB and reinstated the initial decision that the worker’s benefits would be terminated as of the date of the Appeal Commission decision.

The panel considered the provisions of the WCB’s Notice Policy and how those apply in these circumstances. The Notice Policy provides that advance notice is required for discretionary decisions by the WCB, but notice is deemed the WCB must make a change in benefits to comply with the Act or WCB Policy. In other words, when there is no discretion to the WCB in terms of making the change in benefits, the WCB is permitted to make the change without notice. The Policy sets out that in the case of a non-discretionary decision to change benefits, the change “may” be made without advance notice. This is permissive, not mandatory language.

In this case, the WCB was tasked with implementing a decision of the Appeal Commission. The panel finds that there was no element of discretion available to the WCB in terms of whether or not the worker’s wage loss benefits would terminate, as that decision confirmed the worker’s entitlement was ended as of August 26, 2019. As such, the panel finds that this would be a “required” change under the provisions of the Notice Policy; however, the panel does not find that the Policy mandates that no notice will be given when a change in benefits is required. Instead, where a change in benefits is required, it may be made without advance notice pursuant to the Notice Policy.

The Notice Policy also provides that normally, the period of notice will be seven calendar days and the change in benefits will come into effect after the notice period is over; however, the Policy also provides for “additional notice” not exceeding 12 weeks in total, in exceptional circumstances. Exceptional circumstances may be found where:

• The worker has received wage-loss benefits for more than two consecutive years, relies on the benefits for the necessities of life and has no sources of alternative assistance; or, 

• An extended period of notice is essential to assist the worker's employment capability and will likely prevent a further injury; or, 

• The WCB has committed to a program of medical, physical or vocational rehabilitation which is expedient and cost-effective to continue. 

The panel considered the arguments raised by the worker’s counsel in support of an extended notice period in this case. Counsel submitted that all the criteria for reliance on this “exceptional circumstances” provision are satisfied in respect of the worker, in that as of January 7, 2022 the worker had been in receipt of wage loss benefits for more than two consecutive years and relied upon those benefits as their sole source of income and for the necessities of living. Further, the worker required an extended period of notice to assist in their employment capability, in this case, so as to complete the employer’s mandatory course of vaccinations, and furthermore, the WCB had already committed to funding the worker’s upcoming compensable surgery, which was to take place on February 12, 2022, just 5 weeks after the benefits were to terminate.

The panel considered whether the evidence supports the worker’s position that the criteria for extension of notice on the basis of exceptional circumstances are met in this case. The file record confirms that the WCB provided the worker with wage loss benefits from August 26, 2019 by the January 27, 2021 decision of Review Office and this decision remained in force and effect until the Appeal Commission decision of January 7, 2022. Thus, the worker received wage-loss benefits for more than two consecutive years. The evidence before the panel further confirms that the worker relied on those benefits for the necessities of life and had no sources of alternative assistance. As such, we are satisfied that the first criterion is met.

The panel also noted that the employer indicated that Covid-19 vaccination was required in order for the worker to return to employment. We accept the worker’s testimony that they had not been vaccinated prior to January 7, 2022 and acknowledge that the process of becoming fully vaccinated, which is commonly defined as an initial dose plus a booster, requires several weeks, if not longer. As such, although this is a job requirement that is outside the scope of the WCB’s jurisdiction and is a matter as between the worker and their employer, we accept that the worker was not immediately in a position to resume their employment given their unvaccinated status. We find that this would likely have been necessitated an extended period of notice to assist this worker’s “employment capability”. Further, the panel noted that the WCB accepted, in December 2021, that the worker required an additional surgery in respect of the compensable ankle injury and that as of February 4, 2022, the WCB was advised that this surgery was scheduled to take place on February 12, 2022. The file evidence confirms that the WCB placed the worker on wage loss benefits again as of February 12, 2022 in relation to that surgical procedure and related recovery.

In all these circumstances, the panel finds that there is an evidentiary basis upon which to find that exceptional circumstances exist that would merit providing this worker with “additional notice” of the termination of their wage loss benefits and we would therefore exercise our discretion under the Notice Policy to extend the notice period beyond up to the date of the worker’s compensable surgery on February 12, 2022. We are therefore satisfied on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker is entitled to wage loss benefits beyond January 7, 2022 under WCB policy 44.30.60, Notice of Change in Benefits or Services.

Is the worker’s independent living allowance correct? 

This question arises out of the WCB’s March 1, 2022 decision as to the worker’s post-surgery ILA entitlements which are outlined above. The worker disputes the number of hours established for meal preparation, grocery shopping and community outings, laundry, housekeeping and snow clearing on the basis that the hours allotted are insufficient to meet their actual needs, which were outlined in the February 25, 2022 email from the worker’s counsel to the WCB. The panel noted that the WCB offered the worker two options for assessing the worker’s entitlement to independent living and personal care allowance: 1. A home assessment by an external occupational therapist; or 2. Answer a series of questions via email. The file documents that the worker chose the second option and provided the information to the WCB on February 25, 2022.

The worker’s counsel submitted that the hours allocated are not sufficient to meet the worker’s needs as outlined in the information provided and further do not take into account the realities of living in a remote rural northern community where human resources are more limited, and some tasks take longer than would be the case in an urban setting. The worker’s counsel argued that the standard or maximum hours outlined by the WCB ought to be considered minimums and that a case-by-case approach as mandated by the Support Policy would result in greater allocation of hours to these various supports.

The panel considered that the provision of supports for independent living and personal care by the WCB falls under the heading of medical aid, which is to be provided, pursuant to s 27 of the Act, “as the board considers necessary to cure and provide relief from an injury resulting from an accident.” The Support Policy established by the WCB and the Guidelines under that Policy outline how the WCB will determine and deliver such supports. That Policy clearly sets out that decisions about the type, level and duration of assistance are made on a case by case basis, guided by the general criteria outlined in the Policy, which include the criteria that 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 and that the type, level and duration of assistance provided is “based on regular, standardized evaluation of the injured worker’s needs and abilities”.

The panel noted that the Support Policy specifically provides for assistance for personal care attendants to provide preparation of food and routine housekeeping and guidance and safety outside the home, such as on routine shopping trips or medical appointments. Further, the Policy provides for assistance 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." These are the supports specifically determined by the WCB to be required by the worker during their post-surgical recovery period. The panel also noted that the Administrative Guidelines to the Support Policy reference that eligibility, type, level and duration of such assistance is based upon the general criteria in the Policy and “Needs assessments conducted by the WCB…with the participation of the worker. The Guidelines go on to note that assistance for snow removal is limited to the area that is required for safe access to the primary residence and that the level of assistance “…is based on grids developed by the WCB for this purpose.”

In order for the panel to assess whether the supports offered by the WCB are correct, the panel considered whether the WCB appropriately applied the provisions of the Support Policy in determining the worker’s entitlements. We are satisfied that the WCB appropriately sought and obtained information from the worker as to their specific personal care and independent living support needs. Although it is common for such assessments to be undertaken by an in-home evaluation, in this case the WCB offered the worker another option which the worker accepted. The next step in this process, as described in the Support Policy Administrative Guidelines is for the level of assistance to be determined “based on grids” that the WCB has developed for this purpose. The panel sought further information from the WCB following the hearing as to how this was undertaken in the worker’s case. The WCB responded in a memorandum dated February 14, 2023 as follows:

Maximum times for personal care and independent living needs have been created by the department to ensure continuity of recommendations. These maximums are based on the average amount of time it takes a caregiver to complete a task without injury. These maximums are consistent with care providers within the community.

Exceptions exist for workers with serious or complicated care needs. Typically these would be assessed on a case by case basis through an in person assessment.

While the review/recommendations for [the worker] were not specifically put into a grid template, the February 28th rehabilitation assessment is a reflection of the PCA time grid. As an in person assessment was declined by the worker, the times awarded were based on the information secured by the WCB regarding the worker’s functional status and with knowledge of the typical post-op recovery limitations.”

The WCB went on to outline the process by which the worker’s specific entitlements were calculated:

Meal Preparation (PCA): 

• Typically the maximum is 1 hour per day. 

• In this case the worker was deemed capable of preparing breakfast/dinner. 

• 4 hours per week was assessed for larger bulk meal prep for suppers (larger meals). 

Grocery Shopping (PCA): 

• Typically the maximum is 2 hours per week. 

• Worker is non weight bearing on his lower right extremity. 

• … awarded 1 hour based on [their] reduced mobility and inability to drive. 

Community Outings (PCA): 

• Typically the maximum is 3 hours per week. 

• Worker was awarded 2 hours based on [their] inability to drive. 

• It is anticipated beyond driving the worker would be able to engage in outings using pacing strategies. 

Laundry (ILA): 

• Typically the maximum is 2 hours per week for a household. 

• Worker was assessed at 1 hour due to inability to carry, transfer and putting laundry away. 

• It is anticipated that the worker would be independent with folding laundry either by sitting/standing using pacing strategies. 

Housekeeping (ILA): 

• Typically the maximum is 1 hour per week. 

• The worker was assessed at 1 hour due to [their] non weight bearing status. 

Snow Clearing (ILA): 

• Snow clearing is assessed based on property and time spent to clear snow in order to gain safe access to the primary front entrance. 

• This was assessed based on a file review. 

• Worker was assessed at 1 hour based [on their] challenges with mobility.

The panel noted that the WCB response confirms that the level of assistance was calculated without reference to the worker’s needs as outlined in their communication to the WCB of February 25, 2022 and further that the response suggests that because the worker declined to have an on-site assessment, their information was determined not to be relevant. The panel further noted that the WCB confirmed it did not use the grid template which it failed to provide in response to the panel’s request. The panel also noted that the WCB response indicates case by case assessment is used for “workers with serious or complicated care needs” although the Support Policy sets out that all decisions are to be made on a case by case basis.

We find that the WCB failed to properly implement the Support Policy in assessing and establishing the worker’s personal care and independent living support as required by that Policy. If the information provided by the worker by a means suggested by the WCB was not sufficient, the WCB could and should have inquired further of the worker; however, there is no indication that this happened. The rehabilitation specialist noted, for example, “As an in-person assessment was declined, this RS [Rehabilitation Specialist] does not know the current layout of the worker’s kitchen…. A picture of the kitchen layout may be required to further assist with RS recommendations.” The worker’s claim file does not indicate any follow up on this point although the WCB went on to establish the worker’s entitlements at below the “maximum” levels available based on the “deemed capability” of the worker. The panel noted that the worker’s needs and allowances in relation to grocery and community outings do not make any reference to the fact that the worker lives rurally nor to the specific distances and travel times. As another example, the information provided by the worker indicates they are unable to do laundry, but the WCB rehabilitation specialist determined the worker required only 1 hour per week of assistance without enquiring at all as to the details of the location and type of laundry facilities available in the worker’s home.

Based on the information in the worker’s claim file and the additional information provided by the WCB on the panel’s request, we are satisfied that the worker’s personal care and independent living allowance were not fully assessed and determined in accordance with the requirements of the WCB’s Support Policy. We are unable to make any findings as to the worker’s specific independent living and personal care support entitlements as the WCB has not fully investigated, evaluated and assessed those entitlements.

Therefore, the panel refers the question of the worker’s post-surgery independent living and personal care allowance entitlements back to the WCB to determine in accordance with the Support Policy provisions.

In sum, the worker is entitled to wage loss benefits beyond January 7, 2022 under WCB Policy 44.30.60, Notice of Change in Benefits or Services and the question of the worker’s post-surgery independent living and personal care allowance entitlements is referred back to the WCB to determine in accordance with the provisions of WCB Policy 44.120.30, Support for Daily Living.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee
K. Dyck

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

Signed at Winnipeg this 14th day of April, 2023

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