The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. The worker was not entitled to wage loss benefits after February 9, 2024 in relation to the March 23, 2021 accident; 

2. The worker’s personal care allowance has been correctly determined to March 26, 2023; and 

3. The worker is not entitled to an independent living allowance for lawn care and snow removal in addition to what has been paid for services rendered on November 30, 2022 and for the month of December 2022.

A hearing was held on January 27, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after February 9, 2024 in relation to the March 23, 2021 accident; 

2. Whether or not the worker’s personal care allowance has been correctly determined to March 26, 2023; and 

3. Whether or not the worker is entitled to an independent living allowance for lawn care and snow removal in addition to what has been paid for services rendered on November 30, 2022 and for the month of December 2022.

Decision

1. The worker is not entitled to wage loss benefits after February 9, 2024 in relation to the March 23, 2021 accident; 

2. The worker’s personal care allowance has been correctly determined to March 26, 2023; and 

3. The worker is not entitled to an independent living allowance for lawn care and snow removal in addition to what has been paid for services rendered on November 30, 2022 and for the month of December 2022.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 121/22, dated December 16, 2022. The background will therefore not be repeated in its entirety.

In brief, the worker has an accepted WCB claim for an injury to their right ankle, initially accepted as a right ankle sprain, with a sprain/strain of the peroneal tendon being the current diagnosis, that occurred at work on March 23, 2021, when they stepped off a ladder and rolled their ankle. The worker’s claim was accepted by the WCB and the worker received various benefits including wage loss and medical aid. Pursuant to Appeal Commission Decision No. 121/22, it was also determined the worker was entitled to further wage loss benefits during various time periods, including after April 14, 2022.

The worker continued to receive ongoing treatment and on the recommendation of their treating physician, was referred to an orthopedic surgeon for possible surgical intervention. At their appointment on August 2, 2022, the surgeon diagnosed the worker with right ankle instability and peroneal tendon tear/tendinitis and recommended right ankle ligament reconstruction and perineal tendon repair surgery, which took place on November 29, 2022. At the request of the worker who noted concerns with their ability to perform the activities of daily living and other tasks around their home while recovering from surgery, the WCB undertook a personal care and independent living assessment on December 9, 2022. At that time, it was recommended that the worker was initially entitled to 25 hours per week of personal care allowance, which was reduced to 15.5 hours after December 10, 2022, to be reassessed in 3 months’ time. With respect to the Independent Living Assessment, it was recommended the worker receive 2 hours per week until the next assessment in 3 months’ time, along with snow clearing from November to April up to a rural monthly maximum. On January 9, 2023, the WCB provided the worker with a formal decision letter advising their personal care allowance and independent living allowance, for a total of 40.5 hours per week, in addition to a maximum urban snow removal allowance would be paid in a monthly amount. At a post-surgery follow-up appointment on January 31, 2023, the surgeon noted the worker’s reporting of inability to stand without pain and perform the usual activities of daily living and indicated the worker was to increase the weight bearing in the boot cast prescribed, start physiotherapy to work on range of motion in their toes, foot and ankle and remain in the boot cast for a further 6 weeks. The treating surgeon went on to note the worker should be able to attend to their own personal hygiene needs but could still require assistance with some household chores, likely for another 4 to 6 weeks.

The worker’s Personal Care Allowance and Independent Living Allowance were reassessed by the WCB on February 9, 2023. It was recommended the worker’s Personal Care Allowance entitlement be for 9 hours a week and Independent Living Allowance entitlement be for 2 hours per week and include up to $226/month for snow cleaning. Both entitlements were to be reassessed in 6 to 8 weeks. It was noted on the worker’s file, the worker moved from Manitoba to their home province on March 10, 2023. On May 31, 2023, the number of hours the worker was entitled to for their personal care was reviewed by the WCB at the request of the worker’s representative. At that time, it was determined the number of hours the worker was entitled to was incorrectly reduced on December 9, 2022 and as such, and the worker was reimbursed for an additional 9.5 hours a week from December 10, 2022 to March 10, 2023 and for 25 hours per week from March 11, 2023 to May 31, 2023.

A further personal care allowance assessment took place virtually with a WCB rehabilitation specialist on June 6, 2023. The specialist recommended the worker be entitled to 8 hours of personal care allowance however, it was noted by the specialist that it was unusual for the worker’s compensable ankle injury to not allow the worker to be functionally weight bearing 14 months post-surgery and a medical review of the worker’s file was recommended. On June 15, 2023, the WCB advised the worker by way of a formal decision letter it had been determined they were entitled to 8 hours per week of personal care allowance, and they were no longer entitled to an independent living allowance effective June 24, 2023. On June 30, 2023, the WCB provided the worker with a further decision letter confirming the earlier decision the worker was entitled to 8 hours per week of personal care allowance and not entitled to an independent living allowance. Also, the WCB noted that the worker moved back to their personal residence in March 2023 and as such, would not be entitled to lawn care or snow clearing. At the request of the worker's representative, the WCB rehabilitation specialist reviewed the worker's file and on August 13, 2023, determined the worker was entitled to 1 hour per week for an independent living allowance for laundry from June 7, 2023, until a reassessment is completed.

On August 29, 2023, the worker was provided with decisions letters by the WCB. The first decision letter set out the determination the worker was not entitled to reimbursement for lawn care and/or snow clearing prior to November 29, 2022, being the date of their surgery. The second decision letter related to the worker's entitlement to an independent living allowance. It was noted the WCB had provided the worker with entitlement to 1 hour per week for housekeeping. The WCB advised the worker that since they had not provided the WCB with requested pictures or videos of their residence in order for the rehabilitation specialist to better understand the worker's needs for housekeeping assistance, the WCB would no longer provide entitlement for housekeeping.

The worker's representative requested reconsideration of various decisions by the WCB to the Review Office on September 19, 2023. The representative requested that the Review Office determine if the worker's personal care and independent living allowances were correct; whether or not the worker should be reimburse for their actual snow clearing and lawn care expenses or issued a monthly allowance; whether or not the worker should be reimbursed for the actual cost of services for a healthcare aide and whether or not the worker was entitled to an allowance for snow clearing and lawn care after June 24, 2023. With respect to the worker's entitlement to various personal care and independent living allowances, the representative noted the WCB had not checked with the worker or had assessments conducted to indicate the worker's ability to perform various tasks after the March 23, 2021 workplace accident or prior to the November 29, 2022 surgery and as such, the WCB was not aware of the worker's needs or requirements for personal care or independent living. On October 24, 2023, the Review Office determined the worker's personal care allowance was correct until March 26, 2023, after which the Review Office returned the worker's file to the WCB's Compensation Services for further investigation. It was noted that an invoice submitted by the worker dated March 27, 2023 referred to the worker requiring wound care and found the worker did not require wound care at that time with respect to the workplace accident. In addition, the Review Office returned the worker's file to Compensation Services for further investigation with respect to the worker's entitlement to an independent living allowance. In a memorandum dated October 24, 2023 from the Review Office to Compensation Services, the Review Office recommended Compensation Services obtain a copy of the worker's lease for the property they were renting prior to moving back to their home province to determine what independent living activities the worker may have been required to perform as part of their rental. In addition, it was suggested the worker may have been renting the property with other tenants and as such, would mean the worker would have only been responsible for a percentage of activities such as lawn care and snow clearing. Further, it was noted that the worker's spouse stayed with the worker for portions of time after the November 29, 2022 surgery and information regarding when and for how long should be obtained as the WCB would not automatically cover independent living allowance if a spouse was capable of performing them. Lastly, the Review Office recommended confirmation of the services provided such as a valid receipt, cancelled cheque, proof of wire transfer or e-transfer, should be obtained for the services the worker was requesting reimbursement for.

The worker's file was reviewed by a WCB orthopedic specialist on November 9, 2023. The specialist opined the medial evidence on file supported a diagnosis of lateral ankle pain of nonspecific nature following a varus strain/sprain. The specialist went on to note that a May 27, 2021 MRI noted a "probable short segment split tear of the peroneus brevis tendon" as being a possible pain generator for the worker however, the WCB orthopedic specialist indicated the November 29, 2022 surgical report described opening, clearing out inflammatory tissue and closing of the peroneal tendon sheath but did not mention a peroneal split tendon repair as one was not present. Further, the specialist noted the diagnostic imaging on file was indicative of pre-existing ankle injuries, including "past bony/ligamentous avulsions" and found their January 19, 2022 opinion noted the absence of any early swelling or bruising which would have indicated "…enhancement, acceleration, or re-tearing…" of the pre-existing ankle conditions. The specialist went on to provide the anticipated recovery time for the November 29, 2022 surgery would have been 3 months and for ligament reconstruction, 6 to 9 months, with it now being close to 1 year since the surgery, the worker's ongoing inability to weight bear could not be medically accounted for.

On November 17, 2023, the WCB contacted the worker to discuss the medical review of their file. The WCB advised the worker based on the opinion of the WCB orthopedic specialist that the worker had recovered from the March 23, 2021 workplace accident, a decision had been made to end their entitlement to benefits as of November 24, 2023. A formal decision letter was provided to the worker on November 20, 2023. Also on November 20, 2023, the worker's representative contacted the WCB to request consideration be given to extend the worker's notice period from the standard 7 days to 12 weeks as the worker had not worked for over 2 years and the ending of benefits would impose a financial hardship on the worker. On the same date, the worker provided an email to the WCB advising the end of their entitlement to benefits would pose a financial hardship on them and requested consideration for an extension. On November 21, 2023, the WCB advised the worker that their request had been granted and their entitlement to wage loss benefits was extended for 12 weeks to February 9, 2024.

The worker's representative requested reconsideration of the WCB's decision to end the worker's entitlement to benefits on February 9, 2024 to the Review Office on December 7, 2023. The representative noted disagreement with the WCB orthopedic specialist's November 9, 2023 opinion and further, noted that as the worker had been off work for some time, the WCB should have considered a reconditioning plan with a specialized physiotherapy clinic requested by the worker's treating physiotherapist.

The WCB wrote to the worker on February 2, 2024, requesting further information regarding their entitlement to an independent living allowance and personal care allowance as recommended by the Review Office on October 24, 2023.

At the request of the Review Office, a further medical review of the worker's file was conducted by the WCB orthopedic specialist, who in turn, requested a review of the diagnostic imaging by a WCB radiologist consultant. The in-depth opinion was placed to the worker's file on March 11, 2024. In summary, the specialist confirmed the worker had not sustained a peroneus brevis tendon tear or split as a result of the March 23, 2021 workplace accident, with the WCB radiologist finding evidence of a chronic partial peroneus longus tendon tear on the May 27, 2021 MRI study. The orthopedic specialist went on to provide there was no peroneal tendon pathology that could be related to the worker's right ankle varus/inversion sprain. With respect to the worker's representative's comments regarding the inaccuracy of the specialist's previous opinion, it was noted the radiologist's review of the diagnostic imaging supported prior injury/injuries of the anterolateral ligaments of the worker's right ankle and the mild sprain of that ankle did not affect those pre-existing injuries. In addition, it was noted an August 2, 2022 x-ray confirmed the worker had a non-compensable condition within their foot/heel that was considered the cause of the worker's reported pain and edema found in the "…soft tissues inferior to the fibula, and edema within the lateral portion of the sinus tarsi" noted the October 16, 2023 MRI study and was not medically related to the compensable injury. A copy of the opinion was provided to the parties on March 11, 2024, with the worker's representative providing a further response on March 14, 2024.

The Review Office determined on March 26, 2024, the worker was not entitled to benefits after February 9, 2024. The Review Office accepted and agreed with the opinion of the WCB orthopedic specialist, in consultation with a WCB radiologist and found the worker sustained a mild right ankle sprain as a result of the March 23, 2021 workplace accident. The Review Office was unable to account for the worker's current complaints, including inability to weight bear on their right ankle, in relation to the workplace accident. Further, the Review Office found the worker had pre-existing difficulties in their right ankle which the worker had surgery for on November 29, 2022 and found those difficulties were not enhanced by the workplace accident.

On April 5, 2024, the worker's representative submitted additional documents with respect to the WCB's February 2, 2024 request for further information. The representative provided the WCB with a copy of the lease agreement for the property rented by the worker prior to their move back to their home province, along with an email dated February 26, 2024 from the worker setting out the times when the worker's spouse was present at the property. The representative noted that clauses within the lease agreement required the tenant to provide lawn care and snow removal, which is why the worker hired a company to provide those services and evidenced by the receipts provided by the worker in September 2023. In addition, the worker's representative noted the email from the worker indicated the worker's spouse was not present often while residing at the property as they frequently worked away from home and continued to do so. The representative also argued that the receipts provided by the worker previously were valid proof of costs incurred by the worker and as such, the WCB should provide the worker with reimbursement for same. The WCB advised the worker on July 4, 2024 that they were not entitled to independent living allowance benefits prior to their surgery on November 29, 2022, and there would be no change to the entitlement issued to them after the surgery to the time they relocated to their home province.

The worker's representative requested reconsideration of the WCB's decision on the worker's entitlement to snow clearing and law care expenses to the Review Office on July 12, 2024. The Review Office determined on September 18, 2024, the worker was entitled to reimbursement for services rendered on November 30, 2022 and for the month of December 2022. The Review Office noted the worker had submitted invoices for services performed prior to their surgery on November 29, 2022, however, it was found those invoices could not be substantiated. The Review Office further found the WCB's rehabilitation services specialist was in attendance at the worker's premises on December 9, 2022 and was advised of services rendered on November 30, 2022 and as such, the worker should be reimbursed for those services. The Review Office also found that the WCB was able to confirm with the service provider of services they performed in December 2022, and determined those services should also be reimbursed. The Review Office found the evidence did not support the worker had incurred expenses for independent living allowance benefits during other times on their claim and as such, was not entitled to reimbursement.

The worker's representative filed an appeal with the Appeal Commission on September 27, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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 personal injury by accident arising out of and in the course of the employment is caused to a worker. 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 Section 37 of the Act. 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 has 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. It also sets out principles to guide WCB decision makers when determining what types of support to provide and the duration of that support. Decisions about whether to provide such assistance are made on a case-by-case basis, however the WCB does look at the following principles when determining what type of support to provide and the duration of that support: 

• The support should compensate the worker for additional costs they incur to engage in the activities of daily living and reflect the type and level of activity the worker engaged in prior to the injury. 

• The support should address the worker's needs in the most cost-effective way possible. 

• The support should enhance, not impede, the worker's recovery and return to work. 

• The support is based on assessments of the injured worker's needs and abilities and may be adjusted during recovery. 

• The WCB is not responsible for compensating costs that have not been previously approved in writing.

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.

Worker’s Position

The worker was present at the hearing, represented by a worker advisor. The worker advisor made an oral submission to the panel and relied on their submissions made to the Review Office. The worker provided testimony through answers to questions posed by their representative and the panel.

The worker’s position is that the worker is entitled to benefits after February 9, 2024 in relation to the March 23, 2021 incident. The worker states that they had not recovered from their injury as of February 9, 2024.

The worker is of the view that there was an enhancement of the worker’s pre-existing ankle conditions and relies specifically on the medical evidence on file that the worker had ankle swelling. The worker references a Doctor Progress Report from March 31, 2021, where the treating physician reported the worker to be tender over the anterior talofibular ligament and that their ankle and foot was swollen. Furthermore, the worker points out that the orthopedic consultant examined the worker on July 26, 2021, and noted an enlarged right ankle with swelling on both lateral and medial sides. The worker submits that the orthopedic consultant’s opinion of March 5, 2022 was that a short segment peroneal split can occur with relatively minimal reaction (i.e. no swelling) and the consultant also stated in November 7, 2023 that a lack of swelling was not abnormal for a pre-existing unstable ankle. The consultant’s opinion was that the absence of swelling or bruising could suggest enhancement, acceleration or re-tearing of chronic pre-existing issues. The worker states that the panel should place more weight on the orthopedic consultant’s earlier opinions, rather than the March 1, 2024 opinion. The worker also notes that the orthopedic consultant did not state that the mechanism of injury was incapable or unlikely to cause a pre-existing ligamentous enhancement.

The worker further submits that when the WCB ended the worker’s wage loss benefits, the worker had been off work for a significant period of time and had been sedentary at home, without any improvement in their symptoms or limitations. The worker submits that this is not appropriate.

The worker’s position with respect to the personal care allowance is that the WCB’s Rehabilitation Specialist’s assessment lacked factual foundation, and the conclusions therein are insufficiently justified. The worker states that the Rehabilitation Specialist offered no explanation to substantiate the number of individual hours selected for each variable. The worker submits that the personal care allowance determinations did not sufficiently consider or meet the worker’s needs.

With respect to the worker’s independent living allowance for snow clearing and lawn care, the worker submits that they were awaiting surgery and had work restrictions in place, namely no climbing or maneuvering on rough or uneven terrain. Therefore, the worker says they required these services due to their injury. The worker further submits that they were entitled to post-surgery snow clearing and did not have to prove their expenses or provide receipts and therefore ought not have to prove those costs for the same services prior to their surgery.

It is also submitted that the delay by the WCB in reviewing and following up on the receipts provided by the worker resulted in an inability to verify the receipts. The worker states that this was detrimental to their claim for reimbursement.

The worker’s position is that even if the panel determines that the worker is not entitled to reimbursement for the specific receipts in this regard, the worker should at least be entitled to a monthly allowance for the services of snow clearing and lawn care, retroactive to the date of the accident, as the worker was injured and had ensuing restrictions.

Employer’s Position

The employer was represented by legal counsel in the hearing, who provided an oral submission and responded to questions raised by the panel.

The position of the employer was that the board did not err in its decisions.

The position of the employer is that the worker had recovered from their injury by February 9, 2024. The employer submits that the cause of the worker’s continued loss of earning and need for medical assistance were non-compensable conditions, unrelated to the workplace incident, and that the workplace incident was fully compensated for, with no further wage loss benefits after February 9, 2024 being required.

The employer argues that the evidence supports that the worker had a prior long standing ligament injury of the right ankle.

The employer states that the worker was not in compliance with the recommendations of their health care providers and that there was overuse of the walking boot. Furthermore, the employer submits that the imaging of the right ankle of March 23, 2021, April 7, 2021 and May 26, 2021 does not show a significant amount of swelling of the ankle and the injury was graded as being mild or first degree in nature by the radiology consultants in their opinion of February 11, 2024.

The employer states that the worker’s personal care allowance and independent living allowance were correctly determined, with no further payments required. In this regard, the employer submits that the worker had not complied with requests from the board throughout the file and therefore it was appropriate for the board to want to verify the receipts provided. The employer submits that without reliable proof of an expense incurred, there is no loss to be compensated.

It is the position of the employer that the board did not err in issuing their decision not to provide a personal care allowance and an independent living allowance for the periods of time in question.

Analysis

There are three questions for the panel to determine on this appeal. First, the panel must determine whether the worker is entitled to wage loss benefits after February 9, 2024 in relation to the March 23, 2021 accident. For the worker’s appeal to succeed, the panel would have to find that the worker’s continuing ankle difficulties after February 9, 2024 were causally related to the injury sustained in the compensable accident of March 23, 2021. As outlined in the reasons that follow, the panel was not able to make such a finding.

Second, the panel must determine whether the worker’s personal care allowance has been correctly determined to March 26, 2023. 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 to a personal care allowance for the time period in question. As set out in the reasons that follow, the panel was not able to make such a finding.

Third, the panel must determine whether the worker is entitled to an independent living allowance for lawn care and snow removal for the specified time period. 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 not able to make such a finding.

The worker’s appeals on all three issues are denied.

Issue #1:

With respect to the first question regarding wage loss benefits, the panel is of the view that the evidence before the panel does not support that the worker’s ankle problems after February 9, 2024 relate to the workplace injury.

The panel accepts the evidence of the radiology consultant who reviewed several x-rays of the right ankle and opined in their report of February 11, 2024 that the worker rolled their ankle on March 23, 2021, but that it was of a mild or first degree nature.

The panel also accepts the opinion that the imaging studies of the right ankle from March 23, 2021 and April 7, 2021 confirm that the worker had significant pre-existing right ankle concerns prior to the March 23, 2021 workplace accident. The medical evidence before the panel provides that the worker underwent surgery, and that the surgery was successful. There was no coverage by WCB for the portion of the surgery that addressed lateral ligament reconstruction of the ankle as it was related to the worker’s pre-existing ankle issues.

The panel acknowledges that the surgery for probable peroneal tendon repairing was authorized, however the panel accepts the evidence from the post-operative report (November 29, 2022) which does not report or describe any repair of a split tendon or a tear. The panel is satisfied that there was no split or tear present and accepts the evidence of the WCB orthopedic consultant in their opinion of November 7, 2023 in this regard. The panel also notes that the surgery for peroneal tendon repair was tentatively authorized. The WCB orthopedic consultant stated in their opinion of March 17, 2022 that tentative authorization can be given for the surgery, “there being no other options it would appear.”

The panel has considered that the compensable ankle injury was mild, and the surgery was not extensive or major, and was successful in that the peroneal tendon was debrided. The orthopedic surgeon noted in the operative report of November 29, 2022 that the worker would be non-weight bearing for a total of three months.

The panel accepts that the surgical procedure the worker underwent regarding the peroneal tendon was less invasive than the procedure for the lateral ankle ligament, which was non-compensable in nature.

The panel does not accept that the presence of swelling alone was evidence of an enhancement when considering all of the circumstances of this worker’s ankle difficulties. The panel accepts that the ankle sprain was mild, and that there would be swelling as a result. The panel does not have objective evidence before it that there was an enhancement of the worker’s pre-existing ankle conditions. The panel relies on the February 11, 2024 review by the radiologist of the May 27, 2021 MRI which confirms the worker had pre-existing lateral ankle ligament instability prior to the workplace accident and deems this to be the cause of the worker’s ongoing ankle difficulties.

The panel agrees with the WCB medical advisor (in their opinion of March 1, 2024) that the worker’s inability to weight bear almost three years post injury is not causally related to the mechanism of injury of March 23, 2021. Therefore, the panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits after February 9, 2024.

Issue #2:

Regarding the personal care allowance, the Act gives the WCB the authority to provide an injured worker with "such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.”

The panel is satisfied that the Rehabilitation Specialist (“RS”) took into account the specific factors affecting the worker when assessing their needs and understood the worker’s restrictions and limitations. The panel notes that the RS was present in the worker’s home on February 9, 2023 and December 9, 2022 to conduct interviews and assessments.

The panel also notes that the Personal Care Allowance Assessment (“PCAA”) report dated February 27, 2023 references that the worker was not weight bearing due to pain, but that the medical restrictions allowed for weight bearing while wearing a walking boot. The RS noted the worker had a walking boot and a 2-wheeled walker. The Support Policy provides that the PCAA involves identifying the level of care of assistance a worker requires and seeks to maximize the worker’s level of independence and function. Accordingly, the panel accepts that the rate would be reduced as the worker recovered. A reduction in the allowance to account for the end of the acute phase of recovery and the expectation of greater mobility is expected.

The notion, portrayed by the worker, of being completely immobile is not reasonable. The medical evidence is that the worker was instructed by their treating surgeon to increase weight bearing in the walking boot as tolerated and to wear their walking boot for 6 more weeks (until March 1, 2023) and to then wean the boot. The worker’s evidence to the panel at the hearing was that no one told the worker how long to use the boot and they continued using it because they wanted to. The surgery the worker underwent was not major or extensive. The panel is of the view that the worker is seeking personal care allowances related to tasks that a reasonable person would expect the worker to be able to perform, within their restrictions. For example, the panel is of the view that the worker could perform some tasks with a walking boot, or without the need to bear weight. The worker was advised by their surgeon to begin bearing weight and the worker was not totally disabled.

The worker has argued that the assessment by the RS was significantly flawed as it lacked mention of the worker’s laundry facilities and did not take into account the worker’s four children living with them. The panel notes that the memorandum prepared by the RS dated December 12, 2022 indicates that the worker has 4 children living with them. Further, the PCAA report was detailed and noted that the worker had a friend (healthcare aid) assist with childcare and cooking, cleaning and making meals. The worker noted that she was attending church weekly as an outing.

The evidence on the file indicates there were concerns raised regarding the worker’s credibility. The panel acknowledges these concerns in assessing the appropriateness of the personal care allowance and the independent living allowance. The panel confirms that the worker was reluctant to provide details to the RS as referenced in the PCAA. In reviewing the evidence and in the testimony of the worker, the panel is of the opinion that the worker’s recollection was inconsistent and in certain instances not probable.

The panel finds that the WCB correctly applied its Support Policy and further finds, on a balance of probabilities, that the worker’s personal care allowance has been correctly determined to March 26, 2023. The worker’s appeal is denied.

Issue# 3:

With respect to the independent living allowance for lawn care and snow removal, the evidence before the panel is that there was a lack of detail in the information provided to the WCB by the worker.

Entitlement for allowances to pay for lawn care and snow removal is based on the actual service provider fees, in this instance the board does not have confirmation of those fees.

The WCB noted to the worker that the snow clearing was approved for November and December “to be paid to worker as per receipts”, when the receipts provided were lacking detail and proof of payment, it is reasonable and responsible for the WCB to request more detailed information and deny an allowance until it is in receipt of same.

The panel has concerns with the credibility of the information provided to the panel. The panel notes that the worker was unable to recall the name of the company or individuals that provided snow removal, despite signing receipts

The panel finds that the worker is not entitled to an independent living allowance for lawn care and snow removal in addition to what has been paid for services rendered on November 30, 2022 and for the month of December 2022.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of March, 2025