Decision #168/13 - Type: Workers Compensation
Preamble
The worker disagreed with the decision made by the Workers Compensation Board ("WCB") that he was not entitled to personal travel costs related to hotel accommodations while visiting family members in another province. A hearing was held via teleconference on November 7, 2013 to consider the matter.Issue
Whether or not the worker is entitled to reimbursement of accommodation costs related to personal travel.Decision
That the worker is not entitled to reimbursement of accommodation costs related to personal travel.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for multiple injuries he sustained in a work related accident on May 28, 1969. The worker has been diagnosed with a cauda equina lesion and incomplete paraplegia below L5 on the right and L2 on the left and is considered by the WCB to be a "severely injured worker" based on WCB policy.
On March 28, 2013, the worker asked the WCB to pay for a "handicap equipped" hotel room while visiting family members in another province.
In a decision dated April 4, 2013 the worker was advised that the WCB was unable to accept responsibility for the costs of his accommodations as requested. The adjudicator noted that based on WCB policy, the WCB was only responsible for travel costs associated with medical treatment due to a workplace injury. As the proposed travel was not related to any medical treatment, the WCB was not responsible for the costs of his accommodations.
On April 8, 2013, the worker appealed the April 4, 2013 decision to Review Office. The worker argued that his condition had deteriorated to the point where the only way that he could get around was with a scooter. He said he may be able to enter his family's home, but there was no way for him to get into the washroom because houses were not made for people in his condition.
The worker indicated that there were insufficiencies in WCB Policy 44.120.10, Medical Aid, when applied to the facts of his case. While the trip was not for any medical purpose, it was a necessity. The worker noted:
- I require a scooter because of a mining accident.
- The scooter is paid for by the WCB.
- If I wasn't handicapped to this extent I wouldn't need a scooter and would stay with my family.
- While my finances probably do not enter into consideration, I cannot afford the expense.
- Even while on a holiday the WCB should be responsible for any extra cost associated with having to use a handicap room.
On May 23, 2013, Review Office determined that the worker was not entitled to accommodation reimbursement for reasons unrelated to his compensable accident. Review Office indicated that the worker's request could not be approved as it was not within the scope of The Workers Compensation Act (the "Act").
Review Office felt that the worker's choice to visit family members for an extended period was considered a personal choice that was not related to his compensable injury. The trip was not related to treatment, medical assessment or acquisition or maintenance of an assistive or medical device. Review Office stated that the WCB was responsible to cover costs incurred solely due to a compensable injury. On June 20, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to the Act. As the worker's accident occurred in 1969, his claim is governed by the provisions of the Act which were in place at that time.
According to the terms of the 1969 Act, compensation for certain non-wage loss expenses are payable under subsection 22(1) which provides as follows:
22(1) In addition to the other compensation provided by this Part, the board may provide for the injured workman such medical, surgical, and hospital treatment, transportation, nursing, medicines, crutches, and apparatus, including artificial member, as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury; and the board may adopt rules and regulations with respect to furnishing medical aid to injured workmen entitled thereto, and for the payment thereof.
WCB Policy 44.120.10, Medical Aid presents a comprehensive and coordinated approach to the 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.
WCB Policy 44.120.30 Rehabilitation and Compensation Services, Support for Daily Living provides guidance regarding the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. The Policy states: "The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products."
Worker’s Position
The worker was self-represented and participated in the hearing via teleconference. The worker explained that his condition had deteriorated to the point where he could no longer ambulate with the use of canes, and he was no longer able to stay at his children's homes when he went out of province to visit them. The worker felt that visiting family was an obligation and due to the effects of his injury, he had to incur additional costs in order to meet that obligation. The worker stressed that he was only seeking reimbursement for the portion of his visit which he considered to be extra charges he would not have otherwise incurred. The out-of-province trip involved approximately ten nights in a hotel. The worker was not seeking the nights spent travelling en route, nor was he seeking reimbursement for nights he spent visiting friends. He was also not requesting costs for meals or mileage, because he would have had to pay these expenses even if he was not injured. To the extent, however, that he incurred additional costs while visiting his family, the worker felt that he ought to be entitled to reimbursement. Due to the effects of his injury, he could not navigate the steps to enter into one family member's home and was no longer able to use the bathing facilities in his other family member's home. He was now required to rent a handicap accessible room to meet his daily needs while travelling to visit family.
The worker acknowledged that it was a gray area and it may be difficult to determine what constituted a family obligation. Examples suggested by the worker were birthdays, anniversaries, funerals, weddings, and regular visits with family.
Overall, the worker felt that even while he was on holiday, the WCB should be responsible for extra costs he had to incur as a result of the compensable injury.
Analysis
In order to find that the worker is entitled to reimbursement of accommodation costs related to personal travel, the panel must find that the Act or WCB Policy provides authority for this type of compensation to be paid to the worker. We are not able to make that finding.
The panel considered WCB Policy 44.120.10, Medical Aid, but we find that it is not applicable. This policy deals only with the delivery of medical-aid services to injured workers and we find that visiting family out of province cannot be considered to be related to the provision of medical aid.
The panel next considered WCB Policy 44.120.30, Support for Daily Living. There is no question that the worker qualifies as a "severely injured worker" under the definition contained in that policy.
Section A.3 of the Support for Daily Living Policy addresses activities for daily living and states: "The WCB consider activities for daily living as actions, services or products that assist a worker to perform basic personal tasks or to live independently." The panel views the policy as being primarily directed at ensuring that injured workers receive assistance with respect to basic personal tasks to help them function on a day to day basis. We feel that out of province travel to visit with family falls outside of the scope of what is typically considered to be basic personal tasks or daily living.
This is not to say, however, that there is no ability under the Act or WCB policy to consider a request such as is being made by the worker. The panel notes that Section B of the Support for Daily Living Policy makes provision for exceptional cases, as follows:
B. Eligibility
1. Method
In each case, the WCB examines all the evidence about the worker's injury in order to determine whether the worker, in the WCB's opinion, reasonably needs the support, service or product.
2. Exceptional cases:
Where unique circumstances arise, the worker may be eligible for additional or alternative support services or products as authorized by a WCB Director in accordance with the financial authority levels established by the WCB.
The panel has given consideration to this section and we acknowledge that there could be circumstances where reimbursement of additional accommodation expenses incurred with respect to required travel would be covered. In the present appeal, however, we find that the fact situation does not constitute an exceptional case. The worker seeks coverage of additional costs incurred to visit family who reside out of province. The worker felt that this type of visit was obligatory in nature, but did not provide any other specific facts or additional rationale as to why the travel was obligatory, other than the maintenance of familial relationships. While family relationships are of utmost importance, they are not exceptional or unique such as to trigger the extraordinary payment contemplated by Section B of the Support for Daily Living Policy.
The panel therefore finds the facts of this case are insufficient to entitle the worker to reimbursement of accommodation costs related to personal travel. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 10th day of December, 2013