WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100121
OBJECTION BY: Worker
PARTICIPANTS: Worker
HEARING DATE: N/A
ISSUES
The worker objects to the case manager (adjudicator) decisions of August 27, 2009 and March 4, 2010. The worker is appealing for:
(1) Entitlement for hydrotherapy.
(2) A commutation of $80,000.00 of his pension award for the purpose of purchasing or renovating his home, or,
(3) In the alternative, a sum of $80,000.00, or a sum equivalent to what the Workplace Safety Insurance Board (WSIB) would pay to renovate his existing home, is placed in his possession in advance, so that he has funds available to purchase a new home of his choice that is larger and would not need any modifications.
HOW THE ISSUES AROSE
The history and nature of this case are well documented in the decision of the appeals resolution officer (ARO) dated June 6, 2008 and will not be repeated at this time.
The worker has requested entitlement to hydrotherapy treatments as he understood that this would assist him in improving his compensable condition. The WSIB medical consultant recommended that this treatment would not be in the worker’s best interest and hence entitlement to hydrotherapy was denied.
The worker has requested commutation of $80,000.00 of his pension award in order to purchase a home that would be suitable for him. The WSIB has strict guidelines as to when a commutation is allowed as a commutation would reduce or eliminate the steady stream of monthly income that the worker now has would stop or be severely reduced, causing additional financial burden to the worker.
As an alternative, the worker requests that a sum of $80,000.00, or a sum equivalent to what the WSIB would pay to renovate his existing home, be placed in his bank account so that he has funds available to purchase a new home that would be larger and not require any renovations or modifications.
The worker’s objected and these issues are presently under appeal.
AUTHORITY
Operational Policy Manual Documents:
11-01-03 Merits and Justice
17-01-02 Entitlement to Health Care
18-07-06 Lump Sum Commutations
RESOLUTION METHOD AND PROCESS
Contact was made with the worker who agreed for the Appeals Resolution Officer to proceed to a decision based on the information contained within the claim record. The worker subsequently submitted a 60-Day Decision Option form received June 2, 2010. By completing this form, the worker is aware the Appeals Resolution Officer will provide a final decision of the WSIB based on the information on record and any additional information submitted with the Objection Form.
A Participant Form was not received from the employer and therefore they were not contacted for this appeal.
PRE DECISION DISCUSSION
The ARO had a lengthy discussion with the worker prior to considering the present objection issues. The worker indicates that he is no longer pursuing entitlement for hydrotherapy. He indicates that he did try a session of hydrotherapy, at his own expense, and agrees with the WSIB medical consultant, that hydrotherapy is not suitable for him and did not help him at all.
The worker advises that he does NOT want a commutation of his monthly pension award in order to receive a lump sum award. He wants his present monthly pension award to continue as is and NOT be affected in any way.
Finally the worker explained that since the WSIB is willing to spend money in order to modify his existing home, he would like to have the cash value of that amount, placed in his bank account, so that he can shop around to purchase a larger and more suitable house himself, that would require little to absolutely no modifications.
A formal ruling will nonetheless be made on all of the issues that the worker raised for consideration.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision in this claim, I have had regard for the record, the applicable law and policy, as well as the interested parties’ view on the issue.
In considering a worker’s entitlement to WSIB benefits, a decision maker is mandated to have regard for WSIB legislation and related policy.
WSIB Policy 17-01-02 concerning Entitlement to Health Care states in part:
A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.
At the time of discussion between the ARO and the worker, the worker explained that he agrees with the WSIB medical consultant regarding the denial of hydrotherapy. The worker indicates that he did attempt hydrotherapy treatment on his own and agrees that it is not suitable for him. I note and accept the opinion of the WSIB medical consultant that there is no medical evidence to support that hydrotherapy would be valuable in assisting the worker with his chronic symptoms. The worker did not provide any evidence to support that hydrotherapy is necessary, appropriate and sufficient as a result of the worker’s injury. I therefore confirm the denial of entitlement to hydrotherapy.
Although the worker indicates that he does not want to pursue the issue of commutation of his pension award, this issue is being considered in the event the worker chooses to pursue this issue in future.
WSIB Policy 18-07-06 regarding Commutations states in part:
A commutation of a monthly pension may be authorized under section 26(1) when
required as a new or continuing rehabilitative measure intended to enable the person to obtain or maintain suitable employment by reducing the effects of a physical and/or psychological disability
medical evidence indicates that the worker's financial situation is producing a disability, which is preventing the worker from obtaining or maintaining employment, and where a commutation will significantly remedy the situation.
"Reducing the effects of a disability" means reducing the precise limitations imposed by that disability. The phrase can be equated with reducing the disability itself. There must be a direct link between the commutation and the reduction of the effects of the disability. There is no direct link between the commutation and employment. The sequence must be commutation --> reduced effects --> employment.
The monthly pension award is a steady stream of income that compensates the worker for his impairment or earnings capacity. I agree with the case manager’s conclusion that the monthly pension award is a reliable source of income that should not be jeopardized. There is no evidence presented that would suggest that a commutation would result in replacing the worker’s WSIB monthly income from another reliable source. As well, there is no evidence to support that a commutation would reduce the effects of the worker’s disability. As such, the worker’s request for commutation of his monthly pension award is not in order.
The worker indicates that his existing house cannot be adequately modified to meet his needs. He indicates that the value of his existing home is about $40,000.00 and that he would like to purchase a new home with the amount of money that the WSIB is willing to put towards his existing house. The worker argues that if he is given cash in advance, he would be in a position to purchase a larger, more suitable home that would likely not require any modifications.
I have carefully considered the worker’s request for cash to be deposited into his bank account in order for him to shop for a new, more suitable home. I am bound by WSIB policy and legislation in making all decisions.
The legislation does not speak to the issue of providing cash to injured workers to purchase a house of their choice, but only to cover the reasonable costs of renovating or modifying an existing home. There is currently no legislative or policy authority to grant the worker’s request. Currently, there is no provision to reimburse injured workers for the costs of purchasing a new home or to provide money in advance so that an injured worker can purchase a new home. Decision makers at the WSIB are not at liberty to ignore the existing legislation and policy on this matter.
It is WSIB practice to consider payment of modifications or renovations necessary to an injured worker’s existing home. As such should the worker choose to purchase a new home, at his own expense, the WSIB is directed to consider whether suitable modifications are required and can be made. Unfortunately the WSIB cannot provide money in advance for the worker to shop for a new home.
CONCLUSION
I conclude:
(1) Entitlement for hydrotherapy is denied.
(2) A commutation of $80,000.00 of the worker’s pension award for the purpose of purchasing or renovating his home is denied.
(3) A request for a lump sum of $80,000.00, or a sum equivalent to what the Workplace Safety Insurance Board (WSIB) would pay to renovate his existing home, being paid directly to the worker, is denied. Should the worker purchase a new home, at his own expense, the WSIB will consider what, if any, modifications are suitable and required.
The worker’s objection is therefore denied.
DATED July 15, 2010
S. Bennett
Appeals Resolution Officer
Appeals Branch