The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.

The Board of Directors has made a policy on injuries that occur subsequent to a compensable injury. WCB Policy 44.10.80.40 applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury.

Section A of the policy provides when a further injury will be compensable. It states:

“A further injury occurring subsequent to a compensable injury is compensable:

(i)where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii)where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii)where the further injury arises out of the delivery of treatment for the original compensable injury.”

Worker’s Position

The worker was represented by a worker advisor who provided a written submission which was received by the Appeal Commission on May 11, 2007.

The worker’s representative noted that the worker was injured returning from a WCB-approved medical appointment. He submitted that had it not been for the worker’s compensable injury, the worker would not have been injured while en route from the medical appointment. The worker advisor submitted that:

“It is our position that part ‘ii’ of the policy applies to this worker’s automobile accident. The WCB did supervise and exercise control over the worker’s medical treatment, as per Section 27(10) of the Act…

The WCB also exercised direct and specific control over the appointment in question by delegating the responsibility of making travel arrangements to the injured worker; an act that exposed the worker to unnecessary risk.

Furthermore, under part ‘iii’ of policy 44.10.80.40, [the worker’s] travel to his medical appointment should be considered as part of the “delivery of treatment.” As the worker’s travel is necessitated by the need for treatment, and the treatment is not provided at the residence of the worker, the WCB has an obligation to accept responsibility for the further injuries that resulted from the worker’s medical treatment.

The Act places a responsibility on injured workers to mitigate the consequences of their workplace injury, and stipulates the consequences for failing to do so. Section 22(1) outlines these responsibilities…

It is a long standing practise of the board to give claimant’s (sic) a choice in transportation for medical aid trips, taking into consideration that the most cost efficient option must always be taken. It only follows that had this claimant went on his own accord to [town] without prior approval of the board; responsibility would NOT have been accepted, even for mileage.” (emphasis in original)

The worker’s representative also advised that the worker used the most cost effective means for travelling to his treatments and this should not result in a hardship for the worker.

The worker’s representative stated that the decision to apply the board policy in such a way as to release the WCB from all liability in this matter is unreasonable, and unfairly penalizes the worker for doing exactly what the WCB expected of him.

Analysis

The issue before the panel is whether the responsibility should be accepted for the injuries sustained by the worker in a motor vehicle accident which occurred on January 24, 2007. For this appeal to be successful, the panel must find a causal relationship between the worker’s compensable injury and the injuries sustained in the motor vehicle accident. The panel was not able to make this finding.

In dealing with this appeal the panel considered and applied WCB Policy 44.10.80.40. This policy identifies three situations in which a subsequent injury will be considered compensable. While the Appeal Commission and its panels are not bound by Administrative Guidelines to policies, the panel considered the Administrative Guidelines to WCB Policy 44.10.80.40 to assist in determining the spirit and intent of the policy.

Predominantly Attributable

Section A (i) of the policy provides that a further injury is compensable if the further injury is predominantly attributable to the compensable injury. Guideline 1 provides that the compensable injury caused or significantly contributed to the subsequent injury. The example provided by the guideline is that the subsequent injury results from a residual weakness in the area of the original injury.

The panel finds the facts do not fall within this policy provision. There was no residual weakness which caused the subsequent injury and that the evidence does not demonstrate that the compensable injury caused or significantly contributed to the subsequent injury in the manner contemplated by the policy or guideline.

Direct Specific Control

Section A (ii) of the policy provides that a further injury is compensable if the further injury arises out of a situation over which the WCB exercises direct specific control. Guideline 2 provides two possible scenarios dealing with direct specific control. One scenario provides that the worker is participating in a WCB sponsored activity. At the time of the subsequent injury, the worker was driving home from a medical appointment. The medical appointment was not scheduled nor arranged by the WCB. The panel finds that the worker was not involved in a WCB sponsored activity and that the WCB did not exercise direct control over the medical appointment.

The second scenario deals with the worker travelling on transportation arranged and paid for by the WCB. At the time of the motor vehicle accident, the worker was driving his own vehicle for which he was eligible to receive a mileage allowance from the WCB. The panel finds that the transportation was not arranged by the WCB and that the WCB did not exercise direct specific control over the transportation. Accordingly the subsequent injuries did not arise out of a situation over which the WCB exercised direct specific control as required by the policy.

Delivery of Treatment

Section A (iii) of the policy provides that a further injury is compensable if the further injury arises out of the delivery of treatment for the compensable injury. Guideline 3 provides as an example, a worker being injured while being examined or treated (suffering complications from surgery for the compensable injury). In this case the worker was not injured during treatment. The motor vehicle accident occurred as the worker travelled home from his medical appointment. The panel is unable to characterize this incident as arising out of the delivery of treatment for the compensable injury. The panel concludes that the subsequent injuries caused by the motor vehicle accident did not arise out of the delivery of treatment for the compensable injury as required by the policy.

In conclusion the panel finds on a balance of probabilities that the injuries suffered in the motor vehicle accident are not predominantly attributable to the compensable injury, did not arise out of a situation over which the WCB exercised direct specific control, and did not arise out of the delivery of treatment for the compensable injury. The panel finds that the WCB is not responsible for the injuries sustained by the worker in a motor vehicle accident which occurred on January 24, 2007.