Highlights of Noteworthy Decisions

Decision 2418 15
11/08/2021
L. Gehrke - B. Davis - S. Roth
  • Health care (home modification)
  • Recurrences (compensable injury)
  • Statutory interpretation (principles of)
  • Health care (medical aid) (marijuana)
  • Consequences of injury (secondary condition)
  • Words and phrases (principal residence)

The worker had a 3% PD award for a 1989 ankle injury, and a 60% NEL award for neck and back injuries and psychotraumatic disability from a 1996 accident. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for home modifications of a staircase handrail, raised kitchen counters, and the installation of a bedroom, bathroom, and laundry facilities on the main floor. The worker also appealed decisions denying entitlement for recurrences of his injuries and medical marijuana.

The appeal was allowed in part.
The worker testified that he owned the home and intended to move there after his separation from his wife, but it was not suitable for his impairments. When he stayed overnight in the home, he accommodated by using a portable toilet on the main floor and sleeping on the couch or in his vehicle. He also stayed in a rental apartment or with friends, and spent winters outside of Canada. He used the home as his mailing address and for his permanent identification.
The Panel sought submissions from Tribunal Counsel on the interpretation of "principal residence" in OPM Document No. 17-06-08, Home Modification. The term was not defined and Tribunal decisions have not considered the meaning of the term in the context of the home modification policy. Tribunal decisions have considered the meaning of "residence" in the pre-1989 Worker's Compensation Act and found that the term meant more than a temporary physical presence in a place. There must be indicia of connection to the location, such as licensing, insurance, mailing address, and rental or ownership.
In the absence of a definition in the policy, the principles of statutory interpretation applied. The term must be given its ordinary meaning and an interpretation that best ensures the attainment of the objects of the legislation. The use of "principal residence" in the policy was meant to ensure that the home being modified was the one in which the worker lived. Otherwise, a modification would not achieve the intended purpose of facilitating a severely injured worker's ability to live independently.
The ordinary meaning of the term principal residence should be understood as the place where the injured worker lives. This is what the term would mean to a competent language user reading the words in their immediate context. As the prior Tribunal decisions found, the residence must be more than a temporary place. Action and intent should be considered and indicia of a connection to a place over time are important.
The worker's home met the criteria of a principal residence in the policy. While the worker had not lived in the home continuously, he maintained a continuing connection to it and it was his primary residence while he was in Ontario.
The worker was entitled to the installation of laundry facilities on the main floor, a handrail on the staircase, and raised kitchen counters. He was not entitled to the installation of bedroom and bathroom facilities on the main floor, as these modifications were not necessary for him to achieve independent living.
The appeals regarding the recurrences were dismissed. The worker was entitled to medical marijuana.