Decision #128/06 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on July 18, 2006 at the request of the worker. Both the worker and a representative for the employer appeared. The panel discussed this appeal on the same date.

Issue

Whether or not the worker is entitled to additional travel expenses; and,

Whether or not the worker's wage loss benefits have been correctly calculated.

Decision

That the worker's travel expenses were properly calculated during the vocational rehabilitation program; and,

That the worker's wage loss benefits have been correctly calculated.

Decision: Unanimous

Background

Reasons

Background

While employed as a carpenter on September 4, 2002, the worker suffered a compensable injury to his right ankle and fibula.

Due to the severity of the injury and the need for physical restrictions, the worker received vocational rehabilitation assistance and services. An Individual Written Rehabilitation Plan (IWRP) was developed with the goal of retraining the worker to gain employment as a Construction/Building Inspector, National Occupational Classification 2264. The vocational rehabilitation program consisted of work experience and training programs. The rehabilitation program commenced in December 2003 and was scheduled to be completed on December 2, 2005. As part of the worker's entitlements while participating in this rehabilitation program, the IWRP provided for the following:
"3. WCB will pay for mileage during the work experience for use of vehicle in related appointments as scheduled by the [work experience employer] and in accordance with policies laid out in letter to claimant dated February 11, 2004 (sic) regarding travel to and from work in Brandon."
The February 11, 2004 letter was in fact a February 9, 2004 letter from the case manager. In this letter, reference was made to WCB Policy 43.00 (Vocational Rehabilitation) which allows the WCB to pay or reimburse travel expenses where a worker is participating in an activity related to vocational rehabilitation and where the expenses incurred are in excess of those which existed prior to the compensable injury.

The case manager acknowledged that prior to the injury, the worker, who resides outside of the Brandon area, carpooled to Brandon with a co-worker. The case manager therefore decided that the WCB would reimburse the worker 50% of his mileage expenses based on a daily distance traveled of 81 kilometres (return) from his home to Brandon.

By way of letter dated February 11, 2004, the worker:
  • advised the WCB that the actual mileage he was required to travel from his home to his place of work was 92 kilometres round trip and not 81 kilometres. He added that prior to his accident, one or two people would car-pool with him and they paid him $10.00 per day which helped to keep his expenses down.
  • requested that the WCB reconsider the calculations used in determining his wage loss benefits. He stated that when his earnings were averaged three months after his injury, the WCB used his "last year of income" which he contended was his lowest income. He continued by stating that the WCB had told him that they would average his income over a 12 month period and pay him 90% of that amount.
The case manager agreed to reimburse the worker based on 50% of the corrected mileage figure of 92 kilometres round trip. He then asked that the worker's average earnings be reviewed.

In a memorandum dated February 24, 2004, the payment assessor advised that the worker's previous years earnings for 2000 and 2001 were not used as they were lower than the earnings used to project the worker's income for 2002. The worker's average earnings were therefore based on his highest year of earnings.

The figures used to determine the worker's average earnings were contained in a letter to the worker dated November 29, 2002. The relevant information from that letter is as follows:

Actual earnings January 1, 2002 - February 3, 2002 =$ 8 817.67
Employment Insurance February 4, 2002 - May 22, 2002
14 weeks x $413.00
 =$ 5 782.00
Actual earnings from accident employer May 23, 2002 - September 4, 2002
 =$14 172.59
Actual earnings averaged over the period worked -
$14 172.59 ÷15 weeks = $944.84 per week
 
Projected earnings September 5, 2002 - December 15, 2002
$944.84 x 14 weeks 2 days
 =$13 605.70
Employment Insurance (EI)
2 week waiting period December 16, 2002 to December 29, 2002
 =$0
Employment Insurance December 30, 2002 to December 31, 2002 -
$413.00 per week x 2 days
 =$165.20
TOTAL =42 543.16

The total estimated earnings of $42 543.16, averaged over 52 weeks is $818.14 per week. As explained in our previous letter, we reduce this weekly amount by your probable deductions for EI, CPP and income tax to establish your net income. We then pay you 90% of the net wages."

The worker's February 11, 2004 letter was referred to the WCB Review Office. On May 13, 2004, Review Office acknowledged receipt of the worker's appeal on the issues relating to the decision to only pay him a 50% mileage reimbursement as well as with respect to his benefit rate calculation.

On July 8, 2004, the employer's advocate provided correspondence to Review Office advising that they were appealing the decision to provide the worker with a 50% mileage expense. The advocate advanced the argument that the WCB is only obligated to reimburse an injured worker for expenses over and above what they would normally incur had they not been injured. In this case, as the worker resided outside of Brandon where his injury occurred, the advocate stated that the worker would have incurred these travel costs regardless of the accident and therefore should not be entitled to the 50% reimbursement.

On October 14, 2004, Review Office determined that the worker was not entitled to additional travel expenses and that his wage loss benefits had been correctly calculated. With respect to the travel expenses, Review Office acknowledged that the worker's pre-accident expenses were in part, offset by the approximate $10.00 per day that he received from two co-workers. Review Office agreed that since the worker was traveling the same distance while participating in his rehabilitation program as he did pre-accident, and was no longer receiving the $10.00 per day from his prior co-workers, he was incurring additional expenses. However, Review Office was of the opinion that a mileage allowance of 50% of the distance he traveled approximated the additional expenses that he was now incurring.

On the matter relating to the calculation of the worker's average earnings, Review Office noted that the worker's actual earnings in 2000 were $14,162.00 and $38,409.36 in 2001. The payment assessor in calculating the worker's average earnings chose to utilize the worker's projected earnings for 2002 which were determined to be $42,543.16. Accordingly, Review Office confirmed that the highest amount was used in determining the worker's average earnings and that this was entirely consistent with WCB Policy 44.80.10.10 (Average Earnings).

On February 2, 2006, the worker completed an application requesting the Appeal Commission consider issues relating to the calculation of his wage loss benefits, his entitlement to travel expenses as well as his entitlement to a permanent partial impairment award (PPI). By letter dated February 16, 2006, the worker was advised that the Appeal Commission did not have jurisdiction to address the PPI issue as the matter had not yet been considered by the lower levels. An oral hearing was convened on July 18, 2006 to consider the worker's other issues.

Worker's Position

The worker takes the position that his travel expenses during his vocational rehabilitation were correctly calculated. He takes issue however with the cessation of this payment subsequent to the vocational rehabilitation.

With respect to his wage loss benefits, the worker says that his employment income from his last employer should be used instead of his average earnings. He also says that going forward, he should receive a partial wage loss as he is now required to work 12 months out of the year for the average salary he received working only 8 months; the WCB should therefore take his bi-weekly salary and multiply it by 26 weeks.

Employer's Position

The employer disputes the worker's entitlement to any travel expense during his vocational rehabilitation as it says the worker did not suffer any additional cost; he worked in Brandon prior to his accident and was trained in Brandon. Any car-pool arrangement he had prior to his accident is irrelevant and comes down to a personal arrangement.

With respect to the wage loss benefits, the employer agrees with the calculation made by the WCB and asks that it be maintained.

Analysis

As noted above, the issues before this panel relate solely to wage loss benefits and travel expenses up to December, 2005 while the worker was in vocational rehabilitation. They do not relate to the worker's benefits after he found alternate employment. These issues have not yet been fully adjudicated at the WCB. We are therefore without jurisdiction to hear them.

Travel Expenses

WCB Policy 43.00 provides:
    "a) Travel Expenses - Where participation in an activity related to vocational rehabilitation involves travel expenses in excess of those which existed prior to the compensable injury, these additional expenses will be paid or reimbursed by the WCB under the following conditions:

    1. A requirement for the worker's personal payment of travel costs is shown to the satisfaction of the WCB to constitute sufficient financial burden so as to prevent reasonable participation in the rehabilitation service;

    2. The travel costs for a particular vocational rehabilitation activity exceed the costs associated with the worker's pre-injury employment; or,

    3. The travel costs are a temporary alternative to relocation of the worker, prior to actual job placement.

    4. The WCB will pay for travel costs on the basis of the method of transportation which represents the lowest cost and is reasonable for the worker to accept.

    5. Travel costs may include:

      • Bus fare.
      • Parking fees (based on receipts).
      • Mileage allowance, at equivalent rates as paid to WCB employees.
      • Airfare.

    6. The WCB will not normally reimburse workers for costs arising out of a personal travel choice made by the worker where the WCB did not initiate that choice." (emphasis added)
In the case before us, although the worker previously worked in Brandon and underwent vocational rehabilitation work experience in Brandon, his travel expenses were increased based on the loss of car-pooling resources.

We find that the WCB's payment of 50% of his mileage costs was reasonable given this increase in expense to the worker, and is consistent with the WCB's policy with respect to travel expenses, as noted above.

The worker's appeal is therefore denied with respect to his entitlement to travel expenses during his vocational rehabilitation.

Wage Loss Benefits

WCB Policy 44.80.10.10, Average Earnings deals with the calculation of wage loss benefits. Three different methods - regular, average and probable - may be used to calculate a worker's wage loss benefits. The key is to use the method that best represents the worker's loss of earnings.

In the case before us, the WCB used the worker's projected or probable earnings for the year of his injury. The projected amount was $42,543.16. At the hearing, the worker conceded that this amount was accurate. We note that this projected amount is higher than the 2 years prior. We therefore find that the worker's wage loss benefits were correctly calculated and, the calculation is in accordance with Policy 44.80.10.10.

At the hearing, the worker also stated that his wage loss benefits are less than what he would have earned had he not been injured as his wages do not reflect changes in his pre-accident employer's benefit package.

Subsection 40(2) of The Workers Compensation Act provides that a worker's average earnings are adjusted as of the first day of the month following the second anniversary of the accident and annually therefore by applying the indexing factor determined under subsection 47. It is this indexing therefore that replaces any increase in benefit or wage packages. As the indexing has been done, we find that the worker's wage loss benefits have been correctly calculated.

Accordingly the worker's appeal is dismissed.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of August, 2006

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