The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue in this appeal is whether or not the worker should be reimbursed for travel expenses he incurred to attend a doctor in Saskatoon.

Prior to addressing this issue, however, the panel addressed a preliminary procedural issue arising from submissions received from both parties. Specifically, the employer made a written submission on May 1, 2009 and the worker made written submissions on May 4 and 12, 2009. Although each party was provided with a copy of the other's submissions, they were not asked to provide comments.

The preliminary issue for the panel, was whether any of those submissions contained new evidence and whether the parties should be given an opportunity to provide comment on them. Having reviewed all three submissions, the panel is of the view that the submissions contained neither new evidence nor changes to either party's position. Accordingly, there was no need for either party to provide a response.

On the main issue dealing with whether the worker is entitled to be reimbursed for travel expenses he incurred while attending a doctor in Saskatoon, we find that the worker is so entitled.

The Facts

The worker sustained a left forearm injury in July 2004. At the time, he was employed in a job which involved a substantial amount of heavy lifting and full use of both hands. In a memo to file dated November 17, 2004 detailing a conversation with the employer the case manager noted that the worker remained in regular contact with his employer and usually stopped in after his medical appointments. A memo to file dated March 29, 2005 describes another conversation the case manager had with the employer in which the employer advised that it was unable to accommodate the worker with modified or alternate duties. The employer was quoted as saying, however, that the worker had a good work ethic and that it would be happy to have him back to work once he had recovered.

The worker’s WCB file contains many memos of similar conversations between the case manager and the employer where, the employer reiterated that the worker was a good employee but that it was unable to accommodate him with modified or alternate duties until his medical status improved. There are also many memos on the file evidencing telephone calls made by the worker to his case manager where the worker provided continuous updates to the WCB of his symptoms and medical treatment therefore.

By May 31, 2005, the case manager stated in a memos that the worker was looking at other employment options because it had been nearly one year since the compensable injury and he did not feel he was getting any better. The case manager noted that she advised the worker that although he had the right to look for a different job, he must ensure that he not work outside of his restrictions. In the meantime, she reiterated that the WCB's goal remained to assist him with his recovery and a return to work with the accident employer.

In June 2005, the worker advised his case manager that he and his spouse had moved to Regina over the weekend. His reasons for moving related to the fact that neither he nor his spouse had employment and while they looked for jobs, they were able to stay with his spouse's parents who lived in Regina.

The case manager's memo to file dated June 21, 2005 which makes note of this conversation indicates that she spoke with the worker about the implications of his decision to relocate to Regina. The case manager explained that the WCB is limited in its ability to facilitate treatment outside of Manitoba and that the worker would be responsible for arranging his medical care. No mention was made, however, that the worker would be responsible for travel expenses associated with that medical care.

After moving to Regina, the worker continued to attend physicians but felt that no progress was being made regarding his treatment. A memo to file dated January 12, 2006 noted that the worker had not been referred to a specialist; however, the case manager advised the worker that the WCB was working towards making an appropriate specialist referral. She noted that they would try to arrange for a specialist in Regina, if possible. Otherwise, the worker might be required to attend an assessment in Winnipeg.

On May 26, 2006, the worker's new case manager advised him that an MRI had been scheduled for him to attend in Winnipeg on June 7, 2006. This had previously been discussed with the worker and by the time of the writing of the memo the worker had already looked into the bus schedule and fares. The memo notes that the case manager advised the worker that he would be provided with an allowance for his travel and meal costs. Accordingly, the worker was advised in a letter dated May 29, 2006 that a cheque was being directly deposited into his account to cover the costs of attending the MRI appointment in Winnipeg on June 7, 2006.

On June 23, 2006, in a memo to file the case manager indicated that she had spoken with the worker and had advised him that as the result of reviewing the MRI his claim was accepted; his benefits would be reinstated and paid to date.

The memo then goes on to acknowledge that the worker's physician would be making a referral for the worker to attend a specialist located in Saskatoon which, the memo notes, is approximately a 2 ½ hour drive. The memo outlines discussions the case manager had with the worker regarding his medical appointments and the fact that he would likely need surgery. The case manager indicates that based on her discussion with the medical advisor the WCB had only accepted the worker's claim for certain conditions and not for others. She notes she advised that an approval for surgery might need to separate the conditions but that would be determined once the surgery proposal was received. No mention was made of any discussion about the WCB's refusal to cover travel expenses associated with the surgery which would take place in Saskatoon.

On August 28, 2006, the worker received a letter from the Review Office confirming that Review Office had considered his appeal and determined that the previous Review Office decision which stated there was no entitlement to wage loss benefits beyond February 13, 2006 was rescinded but travel expenses to attend a doctor in Saskatoon were not accepted.

Throughout 2006, the worker continued to maintain contact with his case manager in Manitoba providing her with updates as to his medical care and in particular his future surgery with the WCB approved specialist in Saskatoon. That surgery ultimately took place on January 16, 2007.

After his surgery, the worker remained committed to returning to work. He recognized that he would not be able to return to his pre-injury employment. As a result, he participated in vocational rehabilitation assessment. Ultimately, the worker did manage to find new employment which was suited to his physical restrictions.

Analysis

The Act and Board Policy

WCB Policy No. 44.120.10 addresses the subject of Medical Aid. In describing its purpose, the Policy states that the

"Medical Aid Policy presents a comprehensive and coordinated approach to delivery of medical-aid services to injured workers. The provision of medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible."

The Policy provides as follows:

3. Expenses

1. Expenses Incurred to Attend Compensable Medical Treatment
1. The WCB will reimburse an injured worker's actual reasonable expenses related to travelling to medical treatment (wage-loss, travel, accommodations, meals and reasonable telephone charges) which are in excess of costs normally incurred by the worker while travelling to and from work.

…

iii. All travel reimbursements should be based on the most cost-effective alternative and take account of the injured worker's medical functioning level.

In receiving medical aid, The Workers Compensation Act ("the Act") requires that a worker who receives medical aid cooperate with the Board.

In reviewing the evidence, the panel finds that the worker was at all times cooperative in his receipt of medical aid. We further find that in this case the WCB failed to convey a clear consistent message to the worker regarding whether it would cover the travel expenses associated with the treatment the worker had been authorized to receive in Saskatoon.

In making this determination, the panel placed specific reliance on the following evidence:

• in the memo to file documenting a conversation dated June 21, 2005 with the worker, the case manager indicated that she explained the WCB was limited in its ability to facilitate treatment outside of Manitoba and that the worker would be responsible for arranging his medical care. No mention was made of any discussion regarding travel expenses;
• on January 12, 2006, the case manager documents another telephone conversation with the worker in which she advised that the WCB would try to arrange for a specialist in Regina but that otherwise the worker might be required to attend an assessment in Winnipeg;
• indeed, in June of that year, the WCB arranged for the worker to travel to Winnipeg for an MRI appointment. All travel costs were covered by the WCB. No mention was made as to why travel costs would be covered in this instance and not in any other;
• several weeks later, in a memo dated June 23, 2006, the case manager discussed the basis upon which the worker's claim would be accepted. The case manager acknowledged that a referral was being made for the worker to attend a specialist in Saskatoon. The memo specifically documents that the appointment required a 2 ½ hour drive and that the worker would likely need surgery. The memo outlines a further discussion regarding the conditions upon which an approval for surgery would be granted. There is no indication the worker was advised at that time that his travel expenses would not be paid.

We find on this evidence, therefore, that the WCB never made it clear to the worker nor, in our view, would the worker have been expected to discern any rationale for when the WCB would or would not cover travel expenses associated with medical treatment he was authorized to receive, whether it was an appointment for an MRI in Winnipeg or an appointment with the specialist for surgery in Saskatoon.