The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 29, 2005, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to full reimbursement of his expenses to job search.

Decision

That the worker is not entitled to full reimbursement of his expenses to job search.

Decision: Unanimous

Background

In 1986, the worker filed a claim with the Workers Compensation Board (WCB) for a right wrist injury that occurred during the course of his employment as an automotive bodyman. The claim for compensation was accepted by the WCB and benefits and services were paid to the worker. As it determined that the worker was unable to return to his pre-accident employment due to his compensable right wrist injury, the WCB sponsored the worker with his obtaining a Bachelor of Education degree.

Subsequent file documentation revealed that the worker tried to secure full time employment as a teacher but was unsuccessful. In November 1993, the worker's wage loss benefits ended when a deemed post accident earning capacity of greater than his pre-accident average earnings was implemented.

In 1995, the WCB determined that the job market for teachers in the Winnipeg area was limited. As the worker declined to relocate to a rural or northern community to secure employment, a WCB vocational rehabilitation consultant (VRC) determined that the worker was entitled to receive wage loss benefits under the WCB's Relocation policy (43.20.40) for a maximum of three years to December 31, 1998. The worker was advised that after that date, the deem would be reinstated which would result in the discontinuation of his wage loss benefits.

In August 1997, the worker advised the WCB that he had started a full time teaching position as of July 7, 1997 at an annual starting salary of $30,658.00. On October 2, 1997, the worker was advised that he would continue to receive wage loss benefits based upon his pre-accident earning level and that this "top up" would continue until December 1998. The worker was further advised that the WCB would cease to sponsor his further educational studies given that he had secured a full time position and that further training would not seem to be necessary.

In December 1997, the worker was suspended with pay from his teaching position due to accusations initiated by his students. Following investigation into the case, the allegation was considered "unfounded" and the worker was expected to return to work on December 22, 1997. The worker decided not to return to the position due to the extreme stress the situation had created.

On February 18, 1998, the worker was advised that his wage loss benefits would be reinstated effective February 7, 1998 based on his earnings as a substitute teacher. The worker was advised that it was still the WCB's position that the teaching profession was a suitable occupational goal. The worker was offered the assistance of a WCB employment specialist to assist him in his job search activities. The worker was advised that rehabilitation services would be limited to job search assistance only which included resume/cover letter preparation and photocopying services.

Effective December 31, 1998 the worker's wage loss benefits ended.

On January 29, 1999, a WCB payment assessor advised the worker that he had been overpaid partial wage loss benefits in the amount of $3656.49 as the actual income earned in 1997 was higher than the rate used to calculate his entitlement. The worker was advised that he was responsible for repaying the full amount of the overpayment. The worker subsequently appealed the termination of his vocational rehabilitation plan and the overpayment to Review Office. Review Office's decision is dated March 12, 1999. Review Office determined that the worker's wage loss benefit entitlement for 1997 should be recalculated and that the worker was not entitled to wage loss benefits subsequent to December 31, 1998.

On June 28, 1999, the worker was advised that his outstanding overpayment balance was calculated to be $3485.70 and that he was required to repay the overpayment amount pursuant to the provisions of WCB policy 35.40.50.

In August 2004, the worker asked the WCB to review his file as he felt that some of the overpayment amount should be offset by unclaimed mileage expenses. In a response dated September 7, 2004, a WCB case manager provided the worker with the following decision:

"We spoke in August, 2004 and you indicated that you had been involved in a program of Institutional Retraining under the auspices of the Workers Compensation Board of Manitoba (WCB). In our conversation you indicated you had to travel extensively to seek employment, venturing as far afield as the United States.

After review of the file I note that no provision for payment of mileage was made in the Individualized Rehabilitation Plan nor is there a letter of agreement indicating we (WCB) would agree to payment of costs accrued for mileage while conducting a job search.

The decision to travel to distant locales such as the United States was not instructed by the WCB. As such, I am unable to accept responsibility for the requested coverage."

On November 8, 2004, the worker appealed the above decision. On November 24, 2004, a WCB Review Officer spoke with the worker in order to obtain additional information concerning his appeal. A memo recording this conversation is on file and is dated November 24, 2004. On December 29, 2004, the worker provided Review Office with a detailed description of the expenses that he was claiming for job search/retraining enhancement.

In a decision dated February 10, 2005, Review Office determined that the worker was entitled to partial reimbursement of his expenses related to job search. Specifically, Review Office ruled that the worker should be reimbursed for mileage in connection with a trip to Dauphin in 1994 and the equivalent of one day's meal allowance, based on the WCB's rates at the time. If the worker produced receipts for photocopying, stamps and envelopes for the period of May 1993 to December 1998, Review Office stated that these costs would be considered for reimbursement. Review Office determined that there was no basis to reimburse the worker for costs associated with his job search outside of Winnipeg (i.e. Calgary, Sioux Falls, SD, etc.) or for the costs associated with his Vocational Teacher Certificate program. In August 2005, the worker appealed Review Office's decision and an oral hearing was then arranged.

Reasons

The evidence confirms that the worker received three years of entitlements in accordance with WCB relocation policy 42.20.40. These benefits ended December 31, 1998. There is no mention in the policy about the right to further benefits once the 3 year period expires. The worker presented no valid argument with respect to entitlement beyond December 31, 1998. We find that the worker received everything to which he was entitled from the WCB. Therefore, we further find that the worker is not entitled to full reimbursement of his expenses for job search. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of November, 2005