The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue before the panel was whether or not the worker was entitled to reimbursement for travelling expenses to attend a chiropractor in Winnipeg.

Applicable Legislation and Policy

The payment of compensation for medical expenses falls under the heading of Medical Aid.

The Workers Compensation Act (the "Act") empowers the board to provide such medical aid as it deems necessary:

Provision of medical aid

27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Medical aid to be under supervision of board

27(10) Medical aid furnished or provided under any of the preceding subsections of this section shall at all times be subject to the supervision and control of the board; and the board may contract with health care providers, hospitals or other health care facilities for any medical aid required, and agree on a scale of fees or remuneration for any such medical aid.

Worker's personal physician

27(12) Without in any way limiting the power of the board under this section to supervise and provide medical aid in every case where the board is of the opinion that the exercise of that power is expedient, the board may permit medical aid to be administered, so far as the selection of a physician is concerned, by the physician who may be selected or employed by the injured worker or his employer, to the end that so far as possible any competent physician may be employed and be available to injured workers.

WCB Policy No. 44.120.10 addresses the subject of medical aid. In describing its purpose, the policy states:

The Medical Aid Policy presents a comprehensive and co-ordinated 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.

Reimbursement of expenses to attend compensable medical treatment is addressed in section 3(a) of the policy. It provides in part:

3. Expenses

a. Expenses Incurred to Attend Compensable Medical Treatment

i) 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.

ii) The WCB may provide escorts for medical appointments …

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

The remainder of section 3(a) of the policy addresses reimbursement for lodging and child-care/dependent-care expenses.

The Administrative Guidelines, set forth in section C of the policy, further address the basis on which travel expenses will be reimbursed:

iii) Transportation/Travel. Mileage will be reimbursed at the rate that a WCB employee would receive for travel within the province. The cost of necessary local transportation will be reimbursed but the WCB does not pay for the cost of personal trips (e.g., shopping, visiting, etc).

Worker’s Position

The worker advised that her initial adjudicator informed her that mileage would be paid for her chiropractic visits.

In her letter, received by the WCB on August 10, 2011, the worker stated, in part:

I asked my first adjudicator … if you pay mileage and she said yes. She had my info knowing I was driving in from [my community]to Winnipeg. She said I could send in my mileage half way through my treatments or at the end of the 10 weeks that I had been given. I never missed work to go see the chiropractor. I was not going to take advantage of the system so I worked odd shifts so I could make it in to see the chiropractor to save you money. Someone I worked with had been told by her adjudicator that you can miss work and you will get paid by comp. I decided to work so I could save you money. My chiropractor is in Winnipeg so why would I go to someone in [my community]? I have not been that impressed with the results I received in [my community]. My chiropractor in Winnipeg stays after hours when I need to get into see him. The chiropractors in [my community] would never stay after hours no matter what kind of emergency it is. [My chiropractor] has bent over backwards to accommodate my work schedule. I also feel I bent over backwards to save you money by not missing work. [My chiropractor] suggested I miss the first couple of days of work. I have some shame so I refused to be a wimp and said I prefer to go to work. I saved you money there too. [My chiropractor] said I recovered so quickly [because] I was able to get looked after the same day. I figured it was best to see the same chiropractor all along. Why explain the situation to so many different chiropractors? This way I went to see one Dr. and he knew what he was dealing with each time …

Employer’s Position

The employer has not taken a position with respect to this matter.

Analysis

The facts establish that the worker injured herself on May 3, 2011 when she slipped on a loose stair tread in her workplace. She suffered a lumbosacral sprain/strain with radicular symptoms and pain in both wrists.

Following completion of her shift, the worker travelled from her home community to Winnipeg to obtain treatment from her regular chiropractor.

On May 11, 2011, the WCB approved chiropractic treatment, to a maximum of 3 treatments per week, for a further 10 week period (i.e., to July 12, 2011). The approval letter, dated May 11, 2011, was copied to both the worker and her chiropractor in Winnipeg.

The approval letter addressed the terms of the approval and referenced the WCB guidelines for treatment frequency. It alerted the worker to the need to seek pre-approval for treatments beyond July 12, 2011. Despite the fact that the WCB knew that the worker was travelling from her home community to Winnipeg for her chiropractic treatments, the letter was entirely silent with respect to the issue of reimbursement for her travel expenses.

A May 11, 2011 memorandum on the worker’s file, authored by the claims adjudicator, documents that the adjudicator spoke to the worker that day to advise her of the acceptance of her claim and that an approval letter was being sent to both the worker and her chiropractor. In terms of the issue before this panel, the adjudicator wrote "Discussed expectations/entitlements (mileage)."

There was no suggestion that the worker was informed that she would not be entitled to reimbursement for her travel to and from Winnipeg.

The worker’s file reveals that the worker made 33 return trips to her chiropractor over the 11 weeks of treatment. It would appear that the worker submitted her claim for mileage either toward the end of or following completion of her 11 weeks of treatment.

By letter dated July 19, 2011, a WCB medical aid assessor advised the worker that she did not qualify for mileage reimbursement. The letter stated, in part:

It appears that the distance you travelled to your appointments at [the] Chiropractic office (118 kms return) is greater than the distance you would travel to the nearest chiropractic facility. There are 6 Chiropractic offices in [your community], which is considerably closer in distance than Winnipeg. You may choose to attend any facility of your choice; however mileage will only be paid if it is within our policy guidelines.

It has been determined that your mileage does not qualify under the Workers Compensation travel policy. Under the travel policy, reimbursement is made for mileage incurred over and above your normal travel to work, to the nearest medical facility to your place of residence.

A notation in the worker’s file discloses that on July 25, 2011, WCB authorized mileage to be paid for the “first treatment only.” The stated rationale for that payment was that “it was difficult to get into a local chiropractor on that date.”

As noted earlier, the worker adjusted her working schedule so that she was able to attend all 33 of her chiropractic treatments without any loss of working time.

The Review Office decision of September 8, 2011, noted that it is the established practice of Rehabilitation and Compensation Services to reimburse injured workers for travelling expenses to attend for medical treatment based upon the distance to the nearest treatment facility, in keeping with the policy directive that all travel reimbursements are to be paid based upon the most cost-effective alternative.

The panel was not apprised of the particulars of the “established practice,” but it is a given that any practice that is established cannot be more restrictive than the provisions in the board’s policy.

Section 3(1)(i) of the policy provides for reimbursement of a worker's "actual reasonable expenses related to travelling to medical treatment …which are in excess of costs normally incurred by the worker while travelling to and from work."

Section 3(a)(iii) provides for re-imbursement of travel expenses based "on the most cost-effective alternative…" This subsection, while primarily addressing reimbursement based on mode of transportation, serves to provide context when considering reimbursement for a worker's "actual reasonable expenses" involved in travelling to a provider who is other than the nearest healthcare provider. It is one consideration, but it is not the only consideration. Where an injured worker has provided sufficient and compelling evidence to support seeing a healthcare provider who is not the nearest or most cost effective, the board has adopted a pragmatic approach, and will consider whether the worker's decision was reasonable in the circumstances. That approach amounts to a sensible application of the Medical Aid Policy.

However, on the facts of this case, the panel concludes that the worker's decision to travel to Winnipeg to seek treatment from her own chiropractor does not, in itself, reasonably support her claim for reimbursement of travel expenses.

That does not end the matter, for the worker states that she was advised that "mileage" would be paid, and that she could submit her mileage claim half way through the treatments or at the end of her 10 weeks of treatment.

The panel accepts that the worker’s version of events is credible. The notes in her file corroborate her contention that the worker had a discussion regarding reimbursement for travel with her claim’s adjudicator on May 11, 2011. The apparent submission of her mileage claim some time after she was more than half-way through her treatments is consistent with her contention that she was told “I could send in my mileage half way through my treatments or at the end of the 10 weeks I had been given.” Further, one would expect that if the worker had been alerted to the possibility that mileage might not be paid, that possibility would have been referred to in the May 11, 2011 file comment regarding this issue. There was no such reference on that date.