The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by the Act, regulations, and policies made by the WCB Board of Directors.

WCB Policy 43.20.40, Relocation (the “Relocation Policy”) indicates how the subject of relocation of a worker will be addressed where it becomes an issue during the management of a case. The Relocation Policy states, in part:

1. FACTORS TO BE CONSIDERED IN APPROVING RELOCATION

a. Relocation should be seriously considered or authorized as part of the management of a claim after reasonably exhausting suitable vocational rehabilitation options within the community in which the worker resided at the time of the injury.

b. It is only after reasonably exhausting options within the original community that relocation may be brought forward as part of a vocational rehabilitation plan.

c. The WCB will make reasonable efforts to help the worker make an informed decision when entering a vocational rehabilitation plan which involves relocation…

d. Relocation will normally be pursued or approved where:

i. There are few, if any opportunities for suitable re-employment in the community in which the worker lives, and greater prospects for suitable and optimum re-employment exist in another community; or

ii. Temporary relocation is necessary for the worker to receive training (i.e. acquire skills) or participate in a job search.

e. Relocation will not normally be approved where:

i. The worker has, independent of the WCB, moved out of the community in which he/she was living at the time of the injury; or,

ii. Commuting to another community is considered a reasonable alternative…; or,

iii. The relocation is not for an actual job (i.e., permanent relocation should not occur just for the purposes of a job search).

The Employer’s Position:

The employer was represented at the hearing by a human resources consultant, and two supervisors from the worker’s department. In the Appeal of Claims Decision form, the employer described the facts surrounding how the worker came to reside in the house owned by the employer. Since 2003, the worker has resided in staff housing that is subsidized and was intended for housing of a different class of employees. Shortly after taking the position, the worker asked to reside in staff housing on a temporary basis in order to bring his family to the area and to allow him time to search for other housing in the area. As the house was vacant at the time, the worker was permitted to stay. All moving expenses were to be incurred by the worker, not the employer, and the terms of employment indicate that the worker was required to provide his own accommodation. The temporary housing extended into a long term residency, and several later attempts to vacate the worker in order to house appropriate staff as intended were unsuccessful.

It was submitted that while the employer agreed that the worker’s improved ability to commute was beneficial, the worker had had sufficient time to move back to his own residence once it was deemed in 2007 that he would no longer be able to be employed by the accident employer. The employer did not pay for the worker’s moving expenses to Location B when he started the position in 2003 and the employer did not agree that it or the WCB should pay for these moving expenses when the worker returned to his residence.

At the hearing, it was also argued by the employer that the worker’s “community” was Location A as that was his permanent place of residence. His “community” should not be considered to be Location B, as he was only residing in that area in temporary housing for the period while he was working there. Location B was neither his permanent residence, nor his community. The employer also submitted that according to the employer’s published directives, there was no provision for coverage of the worker’s relocation costs.

The Worker’s Position:

The worker was assisted at the hearing by a union representative. It was submitted that as the employer did not accommodate the worker at Location B, the WCB undertook a process whereby they determined it would be appropriate to engage the worker in a vocational rehabilitation plan. Part of that plan was to move the worker closer to the City of Winnipeg where the worker could undertake training and work experience. The commute from Location A to Winnipeg was a considerably shorter distance than Location B to Winnipeg, and therefore the relocation was consistent with WCB Policy 43.20.40. As the WCB’s decision to cover moving expenses was consistent with WCB Policy, the panel was asked to uphold that position.

Analysis:

The issue before the panel is whether or not the worker’s moving expenses should be covered by the WCB. After reviewing the Relocation Policy and considering the evidence obtained from the WCB file and at the hearing, the panel is satisfied, on a balance of probabilities, that the worker’s moving costs should be covered.

One of the threshold issues the panel had to determine was the question of where the worker “lived” or “resided”. It was argued by the employer that the worker’s permanent residence was Location A and that when determining eligibility under the Relocation Policy, the worker’s community should be considered to be Location A. He was only temporarily staying in Location B while he was working for the accident employer.

Based on the evidence presented at the hearing, the panel does not accept this argument. Instead, we find that at the time of the accident, the worker lived and resided at Location B. His community was Location B. In coming to this conclusion, the panel relied on the following evidence:

• After the worker secured a residence at Location B, his spouse and two children moved their household from Location A to Location B;
• Although they did not move furniture from Location A to Location B, they did purchase new items for their rented house at Location B and fully furnished the residence;
• The family developed significant attachments to the community at Location B. The worker’s children secured summer jobs in the area and his spouse “loved it there” and did not want to leave;
• The worker and his family would only go back to Location A approximately every two weeks to check in on the residence. Occasionally they would stay overnight at Location A, but then would return back to Location B;
• When questioned on why he did not change his mailing address from Location A, the worker explained that at the time, Canada Post did not permit him to have more than one post office box. Rather than change all of his mailing information, he chose to simply keep the post office box at Location A;
• The worker stated that his intention was to remain living and working at Location B until he retired, at which time he would move back to Location A. Were it not for the injury and the fact that he could no longer rent the house from his employer, he would still be living at Location B.

The foregoing evidence leads the panel to conclude, on a balance of probabilities, that the community in which the worker lived/resided at the time of the accident was Location B. He and his family had formed a significant attachment to Location B during the time they had been there and it had become their home. The fact that the worker still owned his house at Location A does not lead the panel to conclude that Location A was the community where he resided.

In applying the Relocation Policy to the case, the panel finds that this is a situation where there was mutual agreement between the WCB and the worker that he should relocate back to Location A. The house in which he was living at Location B was no longer available to him and alternate accommodations in the area were costly and few in number. More importantly, however, the job market at Location B was limited and there were very few opportunities or prospects for suitable re-employment in that community. It only made sense that the worker relocate to a residence which was more proximate to the Winnipeg job market. His house at Location A was within 100 kms of Winnipeg, and therefore, under WCB policy, it would be considered to be within the Winnipeg labour market. Location B was well beyond 100 kms of Winnipeg.

The employer also argued that the worker’s vocational rehabilitation plan was not yet put in place when he moved in July 2009, so it could not be said that the move was part of the vocational rehabilitation plan. While the panel notes that the plan had a formal start date of August 4, 2009, it is clear that both the worker and the WCB had already acknowledged at an earlier date that the worker would be permanently disabled from performing the physical work associated with his pre-accident occupation and that the options for sedentary work in Location B were limited. The occupation in which the worker was to be retrained had already been identified and the earning capacity analysis for that occupation (dated April 2, 2009) was prepared based on the Winnipeg labour market. It was already anticipated that the worker would have to move from Location B in order to become re-employed and the eviction from his housing at Location B simply sped up the timeline. Ironically, it was the uncertainty created by the eviction which delayed finalization of the vocational rehabilitation plan. Overall, a relocation from Location B to a residence more proximate to the Winnipeg labour market would clearly be required at some point and the relocation back to Location A (which was within 100 km of Winnipeg) was consistent with the ultimate direction of the vocational rehabilitation plan.