Decision #83/05 - Type: Workers Compensation

Preamble

A non-oral file review was held on March 31, 2005, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the relocation expenses from Malartic to St. Martyrs should be reimbursed by the WCB; and

Whether or not the worker is entitled to reimbursement for wood cutting expenses.

Decision

That the relocation expenses from Malartic to St. Martyrs should not be reimbursed by the WCB; and

That the worker is not entitled to reimbursement for wood cutting expenses.

Decision: Unanimous

Background

During the course of his employment activities as a miner in October 1997, the worker developed pain in his right shoulder. He was subsequently diagnosed with a neck sprain and a right C6/C7 radiculopathy/herniated disc. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker. As it was determined that the worker was unable to return to his pre-accident duties due to the nature of his compensable injury, the case was referred to the WCB's vocational rehabilitation branch to assist the worker with locating employment that met his physical restrictions.

The worker's primary residence at the time of his compensable injury was in Malartic, Quebec. In late 2000, the worker moved to St. Martyrs because of a job opportunity as a gunsmith which he considered to be an occupational goal.

On December 15, 2000, the worker contacted the WCB to enquire about the WCB's financial responsibility associated with the costs of his move. A WCB vocational rehabilitation consultant (VRC) advised the worker that he needed three quotes from movers and that moving expenses could not be paid without a vocational rehabilitation plan being completed. In subsequent correspondence, the WCB advised the worker that he would not be reimbursed for his relocation expenses to St. Martyrs as he moved prior to the development of his vocational plan.

In a memo to file dated May 10, 2004, a WCB case manager recorded that the worker received an Independent Living Allowance (ILA) of approximately $600.00 per year to aid him in his wood chopping tasks. She noted that the worker heated his home with wood and was unable to chop wood due to his right shoulder injury.

On May 13, 2004, the worker was advised by the WCB that the WCB would no longer reimburse him for woodcutting expenses as this expense should only have been paid on a one time basis. The case manager relied on WCB policy 44.120.13, Support for Daily Living, as a basis for her decision.

In August, 2004, the worker expressed concerns to his case manager that he had been mislead by the WCB concerning moving expenses pertaining to his relocation to St. Maryrs. The worker claimed that he was instructed to locate possible movers to help him with his relocation and that the least expensive of the three should be chosen to help him relocate. He did what he was instructed to do and hired the least expensive of movers at a cost of $3,800.00. After he moved, the WCB then told him that he had never been instructed to relocate and he misunderstood what was communicated to him. The worker said he was certain as to what was communicated to him and that he followed through as instructed.

On October 21, 2004, the following decision was relayed to the worker by the WCB:

"I have reviewed your file in detail and can find no documentation or letter confirming this decision. Your Vocational Rehabilitation Plan of October 2001 states that you had moved prior to the development of your plan. It also acknowledges that WCB may reimburse you for a move to ie Quebec City upon completion of your plan to secure employment. Of importance is the comment that your move to Sts (sic) Martyrs Canadiens, while a larger centre, did not provide you with a good labour market and would not be approved." The case manager referred to the WCB's Relocation Policy 43.20.40 in its decision.

In November 2004, a worker advisor, acting on the worker's behalf, appealed the above decision to Review Office as well as the WCB's decision to deny responsibility for wood cutting expenses.

In a decision dated January 27, 2005, Review Office determined that the relocation expenses from Malartic to St. Martyrs should not be reimbursed by the WCB. Review Office referred to the WCB's relocation policy in rendering its decision.

Review Office also determined that the worker was not entitled to reimbursement for wood cutting expenses. Review Office noted that primary adjudication had advised the worker that his entitlement to woodcutting expenses was being ended under policy 44.120.30. Review Office felt that this was the incorrect policy to use and that it was not relevant to the issue. Review Office felt that the worker's request should be considered under subsection 27(20) of The Workers Compensation Act (the Act) as it speaks to the WCB's discretionary authority to provide assistance for the worker's activities of daily living. In considering the Act and because the worker used alternative sources to heat his home, Review Office was of the opinion that the worker was not entitled to payment of woodcutting expenses.

On February 14, 2005, the worker advisor appealed Review Office's decisions and a non-oral file review was arranged.

Reasons

WCB policy 43.20.40 provides in part that a worker will be paid relocation costs under certain circumstances. Generally speaking financial assistance for relocation will be made available "where the worker and the WCB have each considered the issue of relocation and mutually agree to relocation as part of a vocational rehabilitation plan." In the present case, a vocational rehabilitation plan for the worker had not been established nor had there been mutual agreement on relocation at the time when he moved from Malartic to St. Martyrs. As we are statutorily bound by the policies of the Board of Directors of the WCB, we find therefore that the relocation expenses from Malartic to St. Martyrs should not be reimbursed. Accordingly, the worker's appeal with respect this issue is hereby dismissed.

Similarly with regards to the second issue under appeal, we are again bound by WCB policy. Policy 44.120.30 "co-ordinates the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products."

The above noted policy is very clear and specific with respect to the length of time for which the WCB may provide support for independent living. "The WCB may provide injured workers support for independent living for a maximum of six months and at a level established by the WCB…". The worker resided in a heavily forested area where many of the residences were equipped with wood burning furnaces to reduce energy costs. The evidence confirms that the worker received reimbursement for his wood cutting expenses over a six month period as provided for in the policy. In accordance with the policy, we find that the worker is no longer entitled to further reimbursement for wood cutting expenses. The appeal of this issue is therefore 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 17th day of May, 2005

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