The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to snow removal assistance. A hearing was held on June 23, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to snow removal assistance.

Decision

The worker is not entitled to snow removal assistance.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 74/22, dated June 30, 2022. The background will therefore not be repeated in its entirety.

The worker has an accepted WCB claim for an injury to their right knee that occurred at work on August 1, 2014, after an object fell off a pallet and struck the worker's knee. Initially, the WCB denied responsibility for the worker's knee difficulties, with the decision upheld by the Review Office. Pursuant to Appeal Commission Decision No. 74/22, ongoing responsibility was accepted.

On July 28, 2022, the worker's representative contacted the WCB to request assessment of various activities of daily living the worker was no longer able to perform due to the workplace accident, including snow removal. In a discussion with the worker on September 6, 2022 to gather further information, the WCB asked the worker if there were any other entitlements (other than medications, physiotherapy and mileage) that they were seeking and the worker stated there were not.

It was noted on the worker's file that they were involved in a motor vehicle accident in March 2015 and injured their right shoulder. The WCB requested and received a copy of the worker's file from the public insurance agency on November 8, 2022. A review of the file by the WCB found the worker had been assessed by an occupational therapist on behalf of the public insurance agency several times between 2016 and 2019, indicating to the therapist they did not perform any yard work.

The worker attended a Functional Capacity Evaluation to determine their capabilities on May 17, 2023. After the evaluation, the worker’s file was reviewed by a WCB medical advisor and the following permanent restrictions with respect to the worker’s right knee were recommended: stair use up to a frequent basis only; pushing restriction of 82.4 pounds; pulling restriction of 62.4 pounds and floor to waist lifting restriction of 21-50 pounds occasional, 11-25 pounds frequent and 1-10 pounds constant.

The worker’s representative contacted the WCB on October 30, 2023 to request the WCB assess the worker’s entitlement to an independent living allowance from the start of the claim in August 2014 to the present. On November 1, 2023, the WCB contacted the worker’s representative to request further information with respect to the entitlements the worker was requesting. On November 3, 2023, the representative advised the worker performed 100% of the snow removal and other activities of daily living prior to the August 1, 2014 workplace accident. The worker’s spouse confirmed with the WCB on November 7, 2023 that the worker did not receive an independent living allowance from the public insurance agency. On November 7, 2023, the worker’s representative provided the WCB with a copy of the worker’s tenancy agreement for the property they were residing in that indicated the worker was required to “…ensure that private entrances, steps, sidewalks and parking spaces are kept clear of snow, ice and clutter.” An opinion from a WCB orthopedic consultant was provided on November 29, 2023 advising that after the worker’s surgery in January 2022, recovery would have included no weight-bearing on their right leg for 6 to 8 weeks, with use of crutches during that time. An assessment conducted by a WCB rehabilitation specialist on December 18, 2023, confirmed the worker would have been eligible for 1 hour a week of coverage for snow clearing from January 17, 2022 to March 14, 2022. On December 20, 2023, the WCB provided the worker with a decision letter advising they were entitled to reimbursement for snow clearing costs at 1 hour per week from January 17, 2022 to March 14, 2022. On December 21, 2023, the worker’s representative requested the WCB consider the worker’s entitlement to snow removal assistance back to the start of the claim in August 2014 as the file evidence indicated the worker had ongoing limitations in functioning. The WCB provided the worker and their representative with a further decision letter on January 18, 2024 advising they were not entitled to further coverage for snow removal assistance as the medical information on file did not support the worker was totally disabled from performing that task prior to their surgery on January 17, 2022.

The worker’s representative requested reconsideration of the WCB’s decision regarding the worker’s entitlement to snow removal assistance to the Review Office on November 18, 2024. The representative noted the medical evidence indicated the worker would not have been fit to perform snow clearing since the time of the August 2014 workplace accident and as such, should be entitled to coverage for assistance since that time and not just for the recovery period after the January 2022 surgery. On December 12, 2024, the Review Office found the worker was not entitled to snow removal assistance. The Review Office determined the file evidence supported the worker did not perform snow removal prior to the workplace accident as evidenced by the information provided by the public insurance agency with the worker’s reporting to the occupational therapist. In addition, the Review Office found that even if the worker had not been able to perform the snow removal as noted on the tenancy agreement provided by their representative, they did not submit receipts to indicate they hired someone to perform that task and as such, did not incur a financial loss. Accordingly, the Review Office found the worker was not entitled to coverage.

The worker’s representative filed an appeal with the Appeal Commission on March 11, 2025 and a hearing was arranged.

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.”

Policy 44.120.130, Support for Daily Living (the “Policy”) has been established by the WCB and 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: 

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

• 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 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 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. The Guidelines set out that:

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

Worker’s Position

The worker was supported by a representative from the Worker Advisor Office, their spouse and an interpreter during the hearing. The worker provided evidence by way of responding to questions posed by their advisor and members of the appeal panel. The worker’s spouse also offered testimony in support of the worker’s appeal and answered questions posed by the appeal panel. The worker’s representative made an oral submission at the hearing and outlined the worker’s position and the evidence they were relying on. The worker also relies on the written submission provided in November 2024 to the Review Office.

The worker’s position is that they are entitled to snow removal coverage. The worker states that the evidence supports their entitlement to assistance for this service.

The worker states that the medical evidence confirms that they have physical limitations, arising from the compensable workplace injury, and the worker argues that said limitations prevent them from being able to shovel snow. Specifically, the worker states that their family physician indicated in August 2014 that they were incapable of bending and was limited in capacity to stand, walk, lift, push and pull. In November 2015, it was identified in a physiotherapy assessment that the worker had abnormal gait and balance, and reduced tolerance for walking and weight bearing activities. The worker relies on the opinion of their Orthopedic Surgeon from March 31, 2021, who indicates that the worker is restricted from performing twisting, pivoting, squatting since at least June 26, 2019, when the worker was first assessed, and likely since the occurrence of the initial injury (August 1, 2014). The worker states that an inability to twist or pivot equates to an inability to clear snow, as shoveling would require both twisting and pivoting.

The worker’s residence was described to the panel, including the areas of ingress and egress to their home. The worker indicated that snow needed to be cleared at the front of the home and the back and that it was a relatively modest sized area.

The worker believes that they should be entitled to assistance from the WCB for the costs incurred in undertaking these tasks.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker is entitled to assistance for snow removal. 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 activities required for daily living. The panel finds that the worker is not entitled to snow removal for the reasons that follow.

The panel reviewed the applicable legislation and policy and notes that the Policy requires a case-by-case analysis and states 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. Further, the assistance should compensate for activities required for daily living that the worker was engaged in prior to their 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 considered the medical evidence before it and acknowledges that the worker had a knee injury that caused some limitations. The degree of the injury was in dispute and the level of the worker’s functioning was in question. The panel notes that the worker was covered for the period of total disablement immediately following their surgery. The panel is of the view that the evidence does not support that the worker was totally disabled from performing the task of clearing snow.

The panel acknowledges that the home assessment conducted by the public insurance company may have been largely focused on the effect of the worker’s shoulder injury from the motor vehicle accident, however, the panel is of the view that the worker had the opportunity on several occasions to request assistance with respect to snow clearing and did not do so.

It has not been clearly established by the worker that they engaged in activities of snow removal prior to their injury and if they did, it is unknown for how long.

The panel places significant weight on the worker’s own evidence to the occupational therapist (when being assessed on behalf of the public insurance agency) that they did not perform any yard work.

The evidence before the panel is that the worker’s spouse and daughters did the snow clearing, after the worker’s accident. The worker did not have receipts as family members attended to this task. The panel is of the view that there was no loss to the worker.

The panel concludes that the evidence does not support a finding that the worker’s functional limitations prevented them from shoveling snow. Therefore, the panel finds, on a balance of probabilities, that the worker is not entitled to coverage for snow clearing. The panel notes however that this does not prevent the worker from seeking coverage in the future.

The worker’s appeal is denied.

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 21st day of August, 2025