- Health care (attendance allowance)
The worker has a 100% permanent disability (PD) award as a result of compensable impairments to the left leg, low back and for psychotraumatic disability. The worker appealed the following issues: a) the quantum of the personal care allowance (PCA) of 225 minutes of attendant care per week; and, b) the PCA rate of $21.00 per hour.
The Panel allowed the appeal.The worker was entitled to 120 minutes per day for the PCA from April 2019 onwards, with 75% attributable to personal attendant care and 25% devoted to skilled attendant care. Skilled attendant care, as described in the WSIB's Activities of Daily Living Scale (ADLS), includes skin care, such as applying topical medication, administration of medication, bathing, and assistance with a prescribed exercise/stretching program. Personal attendant care includes assistance with dressing and undressing, personal hygiene, meals and mobility. The worker's need for assistance with meals could be adequately accounted for in the personal attendant care as this assistance is required on a more consistent and frequent basis than described under general attendant care. The Panel interpreted PCA to refer to the benefit in general, regardless of who is performing the service. This interpretation is consistent with OPM Document No. 17-06-05, "Personal Care Allowance" which references "attendants." No distinction is made between the type of attendants. Accordingly, the PCA applies for both non-agency and agency attendants. Therefore, the rate paid to a non-agency attendant should be reflective of the rates set out in policy. Thus, 90 minutes per day should be paid at the personal attendant rate and 30 minutes per day at the skilled attendant as set out in OPM Document No. 18-01-05, "Table of Rates." As for the rates paid to the agency, agency attendants are not subject to the rates set out in OPM Document No. 17-06-05; rather, the WSIB is required to negotiate the rate with the agency providing the service and pay the agency directly and in full. The Panel concluded that the WSIB is responsible for the full cost of providing attendant care services when those services are being provided by an agency. Requiring the worker to pay for this service in whole or in part is likely a violation of subsection 33(5) of the WSIA. The worker was entitled to be reimbursed for all amounts paid to the agency providing personal care assistance consistent with the worker's entitlement (i.e., two hours per day). Further to section 33 of the WSIA and OPM Document No. 17-06-05, the WSIB is required to pay for the full cost related to the provision of this service in accordance with the worker's entitlement. Lastly, the worker requested interest on all monies owed. The Tribunal only has jurisdiction to hear and decide appeals from final decisions of the WSIB in accordance with section 123 of the WSIA. Interest payments on delayed benefits was not an issue that was addressed in either of the ARO decisions. This issue was remitted back to the WSIB for further adjudication.