The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to travel expenses associated with his return to work accommodation. A file review was held on November 12, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to travel expenses associated with his return to work plan.

Decision

That the worker is entitled to travel expenses associated with his return to work plan.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a right shoulder injury that occurred in the workplace on October 10, 2011. On January 5, 2012, the worker returned to work performing modified duties in an alternate position. The employer accommodated the worker in the alternate position from January 5, 2012 to August 5, 2012.

In November 2012, the worker submitted mileage expenses for the period January to August 2012. The mileage was related to the distance between his home and the location of the alternate position which was greater than the distance between his home and the work location that he was assigned to at the time of his compensable accident.

On December 18, 2012, a WCB manager with Rehabilitation and Compensation Services ("RACS") determined that the worker was entitled to reimbursement for travel expenses to and from work, over and above his normal travel distance, while being accommodated by his employer in an alternate duty position from January 5 to August 28, 2012. The manager's decision was based on Policy 43.20.25, Return to Work with the Accident Employer, which stated: "The WCB may authorize any reasonable and necessary expenditures, including wage-loss benefits, training subsidies, job-site modifications, and any other reasonable and necessary costs, that will help the worker return to work." As the worker was incurring travel expenses over and above his normal travel expense as a direct result of his compensable injury, the worker was entitled to the travel costs.

On June 12, 2013, the employer's representative submitted an appeal to Review Office with the position that there were no provisions either in legislation or policy which provided for the type of reimbursement referred to by the RACS manager on December 18, 2012.

On August 15, 2013, Review Office determined that WCB Policy 43.00, Vocational Rehabilitation provided for various situations where travel expenses were covered while participating in vocational rehabilitation activities. Review Office was of the opinion that the circumstances of the worker's claim qualified him for coverage of travel expenses being calculated and paid as an allowance under c)(ii).

On August 15, 2013, the employer's representative disagreed with Review Office's decision and an appeal was filed with the Appeal Commission. A file review was arranged.

Reasons

Applicable legislation

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

Employer’s Position

The employer's position was that there is no WCB policy applicable to the circumstances operating in the case at hand.

WCB Policy 43.20.25, Return to work with the Accident Employer (the "RTW Policy") was relied upon by the sector manager in making the initial adjudicative decision. It was submitted that the only WCB Policy which provided for reimbursement of travelling expenses was WCB Policy 44.120.10, Medical Aid, and this Policy limited the reimbursement to medical appointments only. The RTW Policy made no provision for reimbursement of travel expenses incurred for travel to an alternate duty position; although the phraseology of the "Criteria for Assistance" section allowed authorization of any reasonable and necessary expenditures, this would pertain only to the rehabilitative measures available to assist a disabled worker in a return to the work force. It was not meant to allow the reimbursement of travel expenses which would fall within the jurisdiction of medical aid. In the present case, WCB assistance was never required to facilitate a return to work as the employer established an accommodation for the worker as well as maintained full wages throughout. It was also noted that the expenses were never an impediment to a return to work as evidenced by the fact that the worker was accommodated in January 2012, yet the request for reimbursement was not brought to the case manager's attention until November 2012.

WCB Policy 43.00, Vocational Rehabilitation (the "Voc Rehab Policy") was relied upon by the Review Officer in making the second level decision. It was submitted that the worker in this case was entitled to both wage loss and medical aid benefits; however his medical situation did not necessitate referral for vocational rehabilitation services. The return to work process was administered by the employer without the need for assistance by the WCB. Referral to WCB vocational rehabilitation services was never even considered in this worker's case. It was therefore submitted that the Voc Rehab Policy had no application to the case at hand.

Worker's Position:

The worker did not participate in the appeal.

Analysis:

The employer requests that the decision to reimburse the worker for travel expenses incurred in association with his return to work plan be reversed because there was no WCB policy applicable to payment of travel expenses incurred in respect of an alternate position accommodation. In order for the employer’s appeal to be successful, the panel must find that payment of these costs is not authorized under WCB Policy. We are not able to make that finding.

In the panel's opinion, the RTW Policy gives the WCB the authority to reimburse the worker for the additional transportation costs he incurred. Specifically, we rely on the following section:

Criteria for Assistance

The WCB may authorize any reasonable and necessary expenditures, including wage-loss benefits, training subsidies, job-site modifications, and any other reasonable and necessary costs, that will help the worker return to work. The WCB will help a worker return to the accident employer when:

(a) The worker cannot return to the full pre-injury work with the employer without accommodation.

(b) The worker has a temporary or permanent loss in earning capacity.

(c) The employer will need assistance to accommodate the worker in modified or alternate work.

The panel also notes the opening paragraph of the RTW Policy which states:

Policy Purpose

When a worker is injured or becomes ill at work, the goal of the Workers Compensation Board (WCB) is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer. Most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with all parties to help the worker safely return to work.

Despite the fact that the WCB's formal assistance was not required in order to facilitate a return to work in an accommodated position, the panel nevertheless finds that the provisions of the RTW Policy apply. There is no dispute that because of a workplace injury, the worker was unable to perform his regular job duties. The stated purpose of the RTW Policy is "… to reduce the impact of the injury by assisting the worker in returning to work…" In the present case, the only way to facilitate a return to work by the worker was by providing accommodated work at an alternate and more distant location. This was to be on a temporary basis, until such time as the worker had sufficiently recovered to enable him to resume his regular duties at his regular location. It was not a case where the employer had permanently transferred the worker to another station, as it was entitled to do under the terms of their collective bargaining agreement. In the panel's opinion, the worker ought not to be forced to incur additional costs in order to reasonably fulfill his obligation to mitigate his loss of earning capacity. It is the panel's understanding that it is not unusual for the WCB to reimburse expenses for travel other than travel incurred on account of medical aid. For example, the cost of taxi fare for transportation to a regular workplace may be covered in cases where the workers are capable of performing modified duties, but are unable to drive or otherwise transport themselves to the workplace.

Overall, the panel finds that the additional mileage incurred by the worker in travelling to his alternate duty position was an expense which was reasonable and necessary to help the worker to return to work. The worker is therefore entitled to these travel expenses associated with his return to work plan. The employer's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 7th day of January, 2014