The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the established allowance for their Independent Living Assistance and Personal Care Assistance have been correctly determined. A hearing was held on March 25, 2025 to consider the worker's appeal.

Issue

Whether or not the established allowance for the worker's Independent Living Assistance and Personal Care Assistance have been correctly determined.

Decision

The established allowance for the worker's Independent Living Assistance and Personal Care Assistance have not been correctly determined.

Background

The worker has an accepted WCB claim for injuries to their right eye, including hyphema and vitreous hemorrhage with glaucoma, that occurred at work on October 20, 2011 when they were struck on the right side of their face and eye by an object. It was noted on the worker's file they had pre-existing myopic macular degeneration and a history of surgery for retinal detachment for the right eye in addition to being legally blind in their left eye since childhood.

On December 22, 2011, a Personal Care Attendants Assessment was conducted by a WCB rehabilitation specialist. The specialist noted most of the worker's personal care needs, including application of medications and meal preparation, were being performed by the worker's spouse. It was noted that the worker required hourly application of eye drops to their right eye, which they could not do on their own, and their spouse was assisting the worker with that task. After speaking with the worker, the specialist recommended a personal care allowance for the worker based on 25.25 hours of care per week. The WCB agreed with the assessment and accepted the Personal Care Allowance amount for a period of 3 months commencing October 2011. On January 16, 2012, in a discussion with the WCB, the worker's spouse indicated there had been no change to the worker's condition and as such, the Personal Care Allowance was continued on a monthly basis.

A second Personal Care Attendants Assessment took place on May 23, 2012. At that time, it was noted the worker no longer required hourly medication application and as such, it was recommended the number of hours of assistance the worker required be lowered to 11.83 hours per week. A further review of the specialist's recommendation took place on May 31, 2012, and it was recommended that the worker's Personal Care Attendants Assessment remain at the previous amount of 25.25 hours as the worker's vision and function had not improved and the worker still required assistance with their activities of daily living. On October 17, 2012, a permanent restriction of no work in any position that requires vision to perform their duties was recommended for the worker and the WCB placed the worker on long term wage loss benefits.

In February 2013, as the worker had relocated to another province, the WCB arranged for an external occupational therapist to conduct a Personal Care Attendants Assessment. The therapist noted the worker still required assistance from their spouse for most activities of daily living and provided a similar number of attendant hours as previously determined. As such, the WCB continued to pay the same amount as previously provided. The WCB spoke with the worker in February 2014 who advised there had been no change to their condition and as such, no change was made to the worker’s assistance amount. In October 2014, the WCB spoke with the worker to advise there had been changes made to the WCB’s policies with respect to Personal Care Assistance. It was noted that the WCB’s new Supports for Daily Living policy required that an assessment be conducted every second year for workers residing out of province and it was noted an assessment would be scheduled for the fall of 2015. In February 2015, attempts were made by the WCB to arrange for a home visit by a WCB rehabilitation specialist however, the visit did not occur and after consultation with a director, the decision was made to continue paying the worker’s assistance at the same level as previously determined. The worker was provided with a decision letter setting out that the WCB’s policy required a home visit be conducted but the worker’s assistance rate would remain unchanged for October 2015. A further letter dated October 26, 2015, advised the worker that their Personal Care Allowance would remain the same until a home visit could be conducted. The worker’s Personal Care Allowance remained unchanged between 2016 and 2023.

On October 12, 2023, the worker’s spouse contacted the WCB to discuss the worker’s claim. It was noted the worker’s long term wage loss benefits would be coming to an end and the spouse inquired whether or not the Personal Care Allowance would remain in place after the worker turned 65 years of age and noted their belief that the number of hours they assisted their spouse was higher than what they were provided with. The WCB advised that it had been some time since an assessment was conducted and advised that a reassessment with a rehabilitation specialist had been requested to determine if the worker’s needs had changed.

An external occupational therapist hired by the WCB met with the worker and their spouse at their residence on November 11, 2023 to conduct the assessment. After assessing the worker, the therapist indicated that the worker participates in many activities of daily living but requires advance preparation and support from their spouse. Using a report from a 2010 Statistics Canada’s Overview for time use of people within the same age range, the occupational therapist provided the worker’s spouse spent an average of 17.5 hours per week assisting the worker with their personal care. Using the same report, the therapist stated that the worker’s spouse provided an estimated 21 hours per week on the worker’s household tasks and an estimated 5 hours per week providing support to the worker for community outings. The occupational therapist recommended an increase in the worker’s personal care attendant’s assistance to a minimum of 43.5 hours per week. The report from the occupational therapist was reviewed by a WCB rehabilitation specialist on December 21, 2023, who agreed with some of the recommendations of the third-party occupational therapist however, recommended a total of 25 hours per week for Personal Care Allowance and an additional 2 hours per week for Independent Living Allowance. A formal decision letter was provided to the worker on December 22, 2023, setting out the new Personal Care Allowance and Independent Living Allowance amounts. An addendum to the WCB’s rehabilitation specialist’s review of the third-party occupational therapist’s assessment was placed to the worker’s file on January 9, 2024 noting the therapist was unable to take photographs of the worker’s home and did not tour the upper level of the worker’s house where the bedrooms, bathroom and laundry area was located. As such, it was the opinion of the WCB’s rehabilitation specialist the report lacked “…quantitative and qualitative information” and was used for information gathering only.

On January 30, 2024, the worker, through their spouse, requested reconsideration of the WCB’s decision on their Personal Care and Independent Living Allowance amounts. The submission noted that the WCB relied on outdated medical information with respect to the worker’s functioning which did not take into account the total number of hours the worker’s spouse needed to help support the worker throughout the day. It was further noted that the third-party occupational therapist’s report looked at the worker’s needs for their quality of life, which the worker’s spouse believed was not considered by the WCB’s rehabilitation specialist. The Review Office contacted the worker’s spouse on February 1, 2024 for clarification on the medical information referred to in the submission. The worker’s spouse advised the worker had not been seen by an ophthalmologist since 2019.

The Review Office determined the allotted time for the worker’s Independent Living Assistance and Personal Care Assistance was appropriate on February 9, 2024. The Review Office accepted and agreed with the opinion of the WCB’s rehabilitation specialist that the occupational therapist’s use of a 2010 Statistics Canada report was irrelevant and did not consider the worker’s compensable injury, household environment or functional requirements. The Review Office found that the worker’s personal care assistance needs had been assessed at 25 hours per week since the workplace accident in 2011 and further found there was no medical evidence on file to indicate a decline in the worker’s vision that would require an increase in those hours.

The worker’s representative filed an appeal with the Appeal Commission on July 17, 2024, and a hearing was arranged. 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 October 7, 2025, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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. The Act also provides that the board may provide a worker with such medical aid as it considers necessary to cure and provide relief from an injury resulting from a workplace accident.

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 supported by a worker advisor and their spouse. The worker advisor provided a submission in advance of the hearing and made an oral presentation at the hearing. The worker provided evidence by way of answering questions posed by the advisor and members of the appeal panel.

The position of the worker is that the WCB’s assessment of their needs as it relates to independent living or personal care was not correct and the associated allowances were not correctly determined.

The worker states that the assessment by the external occupational therapist should be relied on as they attended their home and interviewed the worker and their spouse for several hours, and therefore their report is based on firsthand observations and conversations with the worker and their spouse.

The worker argues that the WCB reviewed the report from the external occupational therapist and expressed concerns about the recommendations or conclusions in said report, however the WCB did not seek clarification from the occupational therapist regarding their concerns.

The worker’s position is that the opinion of the external occupational therapist is more applicable to the level of care that is actually being provided to the worker. The worker is seeking that the worker’s allowance entitlement should be based on 43.5 weekly hours. Alternatively, the worker is seeking that the WCB complete another in-person assessment.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the allowances for independent living and for personal care assistance have been correctly determined. For the worker’s appeal to be successful, the panel would need to determine that the WCB failed to correctly apply its Support Policy in determining the worker’s specific entitlement to a personal care assistance allowance (“PCA”) and/or an independent living assistance (“ILA”) allowance. As set out in the reasons that follow, the panel was able to make such a finding as it relates to both allowances.

The panel has reviewed the assessments prepared by the WCB rehabilitation specialist and the assessment prepared by the external occupational therapist, and considered the information provided by the WCB with regard to the panel’s questions about specific time allotments.

The panel notes that an internal operational guideline was used by the rehabilitation specialist to determine average allotments for the allowances for ILA and for PCA. It appears that this document was developed as a guideline considering practices used by other care providers, including homecare providers.

The governing legislation and Support policy require that decisions regarding PCA and ILA be based on an individualized assessment of the worker’s actual functional needs, taking into account:

• the effects of the compensable injury, 

• the worker’s abilities and limitations, 

• the worker’s home environment, and 

• the actual time required to perform activities of daily living.

The panel acknowledges that averages may be used in context of specific needs of a person but does not accept the substitution of generalized population averages in place of a worker-specific clinical assessment.

The Support Policy provides that decisions about providing assistance are to be made on a case-by-case, and support is based on assessments on the injured worker’s needs and abilities.

The panel is of the view that the WCB did not correctly apply its Support Policy in relying on average time allotments for this worker’s care tasks. This is not in keeping with the intent of the Support Policy.

The panel accepts that an external occupational therapist conducted an in-home evaluation of the worker and spouse and provided detailed observations of functional limitations and the worker’s reliance on the spouse for personal care, household tasks, and community access. The evidence is that the external therapist opined that the worker required a minimum of 43.5 hours per week of combined assistance. Although the external therapist made reference to 2010 Statistics Canada averages, the time estimates were grounded in observed functional limitations and the spouse’s reported assistance. The averages were used to contextualize time demands, not to replace clinical judgment.

The WCB had concerns respecting the assessment from the external therapist but did not conduct a new in-person assessment and instead concluded that 25 hours of PCA and 2 hours of ILA should be approved. The panel finds, on a balance of probabilities, that this reduction was not supported by an individualized assessment. The WCB did not request the photographs or conduct their own interviews of the worker and spouse but instead relied heavily on the worker having historically received 25.25 hours per week, without reconciling the longstanding absence of reassessment from 2012 to 2023 and without comparing the current functional evidence to earlier assessments.

Given the lack of a current individualized assessment by the WCB, the panel finds that the allowances for ILA and PCA do not accurately reflect the worker’s current compensable needs.

The panel finds, on a balance of probabilities, that the worker’s Personal Care Assistance and Independent Living Assistance allowances have not been correctly determined.

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 18th day of November, 2025