Highlights of Noteworthy Decisions

Decision 1456 22
31/10/2022
C. Huras
  • Health care (attendance allowance)
  • Statutory interpretation (principles of) (legislative intent)
  • Health care (independent living) (severely disabled worker)

The issue under appeal was whether the worker was entitled to an Independent Living Allowance ("ILA") and a Personal Care Allowance ("PCA").

The appeal was allowed.
In accordance with previous Tribunal decisions, the Vice-Chair concluded that where the worker's entitlement to benefits is governed by the pre-1985 Act, a strict application of the requirement that entitlement to an ILA or a PCA be limited to cases where the worker has a total PD rating of 100%, may not be appropriate. In such cases, entitlement may be considered on the basis of OPM Document No. 11-01-03 where exceptional circumstances can be demonstrated.
The Vice-Chair found that the worker would probably be considered "highly impaired" or "severely impaired" within the ordinary meaning of that phrase, which represented an exceptional circumstance that supported the worker's entitlement to an ILA and a PCA (see Decisions No. 2195/09 and 196/14).
Furthermore, the worker's inability to manage more than his basic ADLs and his reliance on his grandchildren, which increased following the illness and then passing of his wife, also represented an exceptional circumstance which warranted the granting of an ILA and a PCA (see Decision No. 2095/19). The Vice-Chair noted that this was not a sustainable arrangement, and it was likely not the intention of the pre-1995 Act or the WSIA to expect family members, who have commitments of their own, to provide attendant care to an injured worker.
Lastly, the Vice-Chair considered that the assigning of a rating for a permanent impairment under the Ontario Rating Schedule, is not an exact science, and involves a certain degree of discretion. The worker's current PD award of 84.5%, and his level of impairment, was comparable to a 100% PD rating that is required in Board Policy for the allowance of an ILA and a PCA. In addition, it was notable that the worker had been granted entitlement to a number of independent living devices and home modifications on the basis that his work-related injury resulted in a severe impairment.