- Estoppel
- Health care (attendance allowance)
- Health care (home modification)
- Health care (medical aid) (escorts)
The worker is in a chronic vegetative state and totally dependent on care for all activities of daily living. A 95% non-economic loss (NEL) benefit was granted. The worker is represented by two individuals, her mother and her sister, who exercise Power of Attorney (POA) on her behalf pursuant to the Substitute Decisions Act. The issues on appeal related to various health care benefits: a) entitlement to escort fees for appointments which did not involve travel; b) entitlement to benefits for management fees; c) quantum of the funds-in-lieu of modifications to the worker's rental apartment; d) entitlement to expenses related to the acquisition of the residence; e) entitlement to the Personal Care Allowance (PCA) while the worker was in hospital; and, f) entitlement to agency attendant rates.
The Vice-Chair allowed the appeal, in part. The claim for escort fees without travel was denied. The Vice-Chair rejected the argument that OPM Document No. 17-01-08, "Escorts", creates entitlement for a fee for "accompaniment" independent of travel for "non-professional" escorts only. OPM Document No. 17-01-08 requires travel to be applicable. The Merits and Justice policy did not apply as it does not allow adjudicators to create new entitlements.Next, the POA submitted that because they are guardians appointed under the Substitute Decisions Act, they should be entitled to a 3 per cent management fee, pursuant to that statute and its regulations, from the WSIB. The Vice-Chair did not accept this submission. Although the POA are entitled, under the Substitute Decisions Act, to annual compensation as guardians of the worker's property; this is not related to the WSIA. The WSIA provides no entitlement to fees to third parties, or reimbursement to the worker for management fees paid to guardians of property. The POA also submitted that the annual compensation constitutes "health care" within the definition of section 32 of the WSIA. The Vice-Chair found that the annual compensation for management of property is not a measure which "facilitates independent living" and is not "a measure which improves the quality of life" of the worker. The Merits and Justice policy does not allow the Tribunal to create benefits or payments not authorized under the legislation.Decision No. 215/23 determined that the worker was entitled to a contribution towards the purchase price of the new home in lieu of the cost of modifications of the rental property. The POA argued that because the rental property was considered unsuitable for modification, the worker should have been provided with "entitlement to fund the purchase of a new residence". This submission was inconsistent with the findings of Decision No. 215/23, which was a final decision that the present decision could not overturn under the doctrine of issue estoppel. The Vice-Chair confirmed the total quantum of the "funds-in-lieu" of modifications. In addition, Decision No. 215/23 did not direct the WSIB to reimburse or subsidize the purchase of the residence; therefore, there was no basis to reimburse specific expenses, such as the legal fees, closing costs, home inspection fees, etc.The Vice-Chair found there was no entitlement to a Personal Care Allowance for the periods during which the worker was in hospital, either under the terms of OPM Document No. 17-06-05, or under the statutory provisions which govern entitlement to health care benefits. OPM Document No. 17-06-05 does not contemplate entitlement to a PCA until after the worker has made a recovery from the acute phase of injury and is discharged from the hospital. The worker's inability to communicate verbally did not constitute an exceptional circumstance. Furthermore, the POAs had proceeded to care for the worker themselves, effectively hiring themselves as non-agency attendants. The applicable payment rate was that established in OPM Document No. 18-01-05 for non-agency attendants. Lastly, the Vice-Chair confirmed that the worker was entitled to 110.5 hours of "skilled attendant care" per month, 467 hours of "personal attendant care" per month, and 882.5 hours of "general attendant care" per month.