The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of the Act. As the worker's accident occurred in 1991, his claim is governed by the provisions of the Act which were in place at that time.

According to the terms of the 1991Act, medical aid payments for expenses such as home renovations are payable under subsection 27(20) which provides as follows:

Measures for rehabilitation

27(20) To aid in getting injured workers back to work and to assist in reducing or removing any handicap resulting from their injuries, the board may take such measures and make such expenditures from the accident fund as it deems necessary or expedient.

WCB Policy 44.120.30, Support for Daily Living (the "Policy") provides guidance regarding the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. The Policy states: "The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products."

Worker’s Position

The worker was represented by a worker advisor at the appeal and participated in the hearing with the assistance of an interpreter. The worker's spouse also provided testimony at the hearing. It was submitted to the panel that there was authority to grant the worker's request for financial assistance for installing a bathroom in his basement under section 27(20) of the Act. The worker also asked the panel to consider the provisions of the Policy, and specifically under section B.2 of the Policy which dealt with unique circumstances, section F which dealt with the WCB's responsibility for home modifications, and section C as a respite issue for the worker's spouse, who is recognized by the WCB as the worker's personal care assistant.

It was submitted that the worker had suffered a severe head injury in the 1991 workplace accident which affected his thought processes and memory and, caused as well what has been described as intense and uncontrollable anger, combined with extremely low tolerance to noise and other stimuli. Despite the fact that the WCB declined to pay for the renovations, the worker had proceeded with the construction. It was submitted that the installation of the basement bathroom was beneficial for the worker in that it created a space where his anger could be held at bay and where the worker had opportunity for solitude and quiet for as long as he felt he needed it. The creation of a complete self-contained space in his home assisted the worker in controlling the anger. The installation of the second bathroom also provided the worker's spouse with a more worthwhile and sustainable form of respite than she would obtain from the more common forms of respite typically offered to personal family care attendants. Finally, it was also argued that the circumstances of the worker's case were unique and that there was authority under the Policy to accept responsibility for benefits in exceptional circumstances.

Analysis

In order to find that the WCB is responsible for home renovations, the panel must find that the worker’s compensable injuries created the need for reasonable modifications to his house. We are able to make that finding.

The panel is receptive to both aspects of the argument put forward on behalf of the worker. We agree that given the nature of the head injury suffered by the worker and the uncontrollable fits of rage he now experiences as a direct result of the injury, it is reasonable to provide him with a self-contained area in his home where he can isolate himself as the need arises. Evidence given by the worker and his wife at the hearing was that the episodes experienced by the worker were similar to seizures, in the sense that once triggered, the worker was unable to control his actions and he would often have no memory after the fact of what had occurred. Unfortunately, the trigger and the target of the anger would usually be the worker's wife and she would bear the brunt of his anger. After the worker "snapped out of it", he would feel badly about his actions. He never had any issues with anger prior to his workplace injury. The worker's testimony was that it was just easier for him to keep himself away from other people and stay by himself in the basement, where there were no triggers.

The panel accepts that the provision of the basement bathroom reduces the effects of the worker's head injury by allowing him to minimize contact with his spouse, when necessary, and thereby avoid having the outbursts. The evidence at the hearing was that since the basement bathroom was installed, the number of anger episodes experienced by the worker has gone down and the level of stress in the house has improved. The worker and his wife both felt that their lives were better now that they had more control over their periods of contact. They may still eat meals together and choose to spend some limited time in each other's company, but for a majority of the time, they could avoid contact completely. The basement bathroom gave the worker the ability to fully control his environment.

The panel also agrees with the assertion that construction of the basement bathroom provides some much needed respite for the worker's spouse. The panel notes that the WCB had concerns for some time over the wife's inability or disinclination to avail herself of respite services and the potential impact on her. The worker and his wife had already recognized that avoiding each other reduced the conflict and so the worker had taken to using a basement sewer drain in the basement to relieve himself. This resulted in the wife having to spend extra time and effort on almost a daily basis to clean the area. This would be in addition to all the other personal care services which the worker's wife provided to him. It is notable that the worker's wife not only assumed all of the tasks associated with maintaining the household and taking care of the worker's personal needs, but she also held a full time job outside of the home. Oftentimes, her sleep would be disrupted during the night when the worker would come upstairs to use the washroom. She described the worker's footsteps as being heavy, and she would always awaken when he used the bathroom, which was located right next to her bedroom. The wife's evidence was that since installation of the bathroom, their daily contact has been cut down by one or two hours. She stated that the basement bathroom has definitely helped her as now she did not have the extra cleaning work and she was able to sleep more during the nights.