The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his place of residence was Winnipeg instead of a rural community where the worker was often located. A hearing was held on September 18, 2014 to consider the matter.

Issue

Whether or not for the purposes of vocational rehabilitation, the worker's place of residence should be considered Winnipeg.

Decision

That for the purposes of vocational rehabilitation, the worker's place of residence should be considered Winnipeg.

Decision: Unanimous

Background

On October 5, 2010, the worker injured his right hand in a work-related accident. His claim for compensation was accepted by the WCB and various types of benefits were provided to the worker while he underwent multiple surgeries for his hand injury. In January 2013, it was determined by the WCB that the worker required permanent work restrictions related to his hand and in May 2013, the worker met with a WCB vocational rehabilitation consultant ("VRC") to discuss vocational rehabilitation planning.

In a memo to file dated May 17, 2013, the VRC stated:

[The worker] and I spent a great deal of time discussing confirming where he was injured. As documented, [the worker] contends that he resides in [Town A] area and was injured working in [Town B], Manitoba. According to him, he has been sent letters in Winnipeg; however, at the time of the injury, he was not residing there. We discussed how important this is relative to his vocational rehabilitation and [the worker] is more than confident that this is not an issue as he confirmed with me that [Town A] was his primary residence.

On June 26, 2013, a WCB case manager advised the worker that it was the WCB's position that Winnipeg was his place of residence at the time of the accident and that the change of address to Town A was only provided to the WCB on November 3, 2011 following a separation.

On January 18, 2014, the worker appealed the case manager's decision to Review Office. The worker stated in his appeal that he had been working in [Town B] area for two years prior to his accident and residing at his home in [Town A]. During the spring and summer, he was employed on the construction of a project in Town B. The worker indicated that at the time of his accident on October 5, 2010, he was working on the project in Town B and living in Town A. After the accident, he spent more time in Winnipeg as he was undergoing active treatment. The worker noted that the issues leading up to his separation did not occur suddenly and that the legal separation occurred in September 2011.

On March 19, 2014, Review Office upheld the case manager's decision that the worker's place of residence was considered to be Winnipeg. Review Office referred to specific file correspondence during the first thirteen months of the worker's claim to support that the worker resided in Winnipeg. Review Office indicated that the worker was commuting to rural Manitoba and was staying with his mother when working for the accident employer. His residence, however, remained in Winnipeg. Review Office further stated:

Had the worker been separated from his spouse at the time of the injury and residing elsewhere, it is not probable he provided an incorrect address to his employer when hired (four months after reported separation). It is also not probable that he would list himself as married and list his address at a residence he had not lived in for six months (his accident report) and then reside back with his ex-spouse in her residence for the ensuing 13 months to November 2011.

On June 9, 2014, 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 Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Pursuant to subsection 27(20) of The Workers Compensation Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

WCB Policy 43.00 Vocational Rehabilitation (the “Voc Rehab Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The Voc Rehab Policy states that: “The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.”

Worker's Position:

The worker appeared in person at the hearing and was assisted by a relative. At the outset, it was acknowledged that the vocational rehabilitation services the worker received from the WCB had been excellent. The only concern was in regards to the finding that the worker's place of residence at the time of the accident was Winnipeg. It was submitted that in October 2010, the worker had been working in the vicinity of Town A and that he was a resident there. While the worker's family residence was in Winnipeg, there were two reasons why he had moved his residence to Town A. First, was to be close to his work. The second was that he was in the process of separating from his spouse. After the accident, the worker did stay in and around Winnipeg as he was seeing doctors on a regular basis.

The worker's relative was himself a resident of Town A and was able to confirm that in his opinion, the worker was a resident there.

The worker noted that he had owned his property in Town A for over 35 years and that he received mail there. He had also always paid taxes on the property and for the past three years, he had received a school tax rebate. When arranging his vocational rehabilitation plan, the worker noted that he always met with his VRC in Town A. The worker stated that his VRC was taken aback when the WCB determined that he was living in Winnipeg. He had not been living there for many years.

Analysis:

The issue before the panel is whether or not for the purposes of vocational rehabilitation, the worker's place of residence should be considered Winnipeg. This is a case where, in the time period surrounding his workplace accident, the worker had been undergoing some changes in his personal life and living situation. There is no question that by November 3, 2011, the worker had relocated his residence from Winnipeg to Town A. That is the date when the worker provided the WCB with formal notice of his change of address. The question in this appeal is whether this relocation had actually occurred earlier. In order for the worker's appeal to succeed, the panel must find that at the time of the accident on October 5, 2010, the worker no longer considered the marital home in Winnipeg to be his place of residence and that he had permanently moved to his dwelling in Town A. On a balance of probabilities, we are not able to make that finding.

In the panel's opinion, at the time of the accident on October 5, 2010, the worker may have been undergoing some marital difficulties, but we find that he had not yet changed his permanent place of residence to Town A. In coming to this conclusion, the panel relied on the following:

• When the worker was hired by the employer on August 16, 2010, he gave his employer the Winnipeg residence as his home address.
• When providing information for the WCB Worker Incident Report on October 8, 2010, the worker gave the Winnipeg address.
• In a file note dated November 5, 2010, the worker is recorded as stating that he: "has a cottage at [Town A] so he lives and works there in the summer."
• At the hearing, the worker confirmed that while he had owned the property in Town A since before he was married, during the course of the marriage he would stay there mostly on weekends in the summer and for a week or so during holidays.
• The worker's formal date of separation was in October 2011. It was soon after that date on November 3, 2011 that the worker provided the WCB with notification of the change of address to Town A.
• When the claim was first started in October 2010, the worker had instructed the WCB to deposit his benefits to a bank account in Winnipeg held jointly with his spouse. It was not until after the date of separation that the worker changed his deposit information to a bank account in Town B.
• At the time of the accident, the worker had not yet changed his address to Town A and was still receiving his mail at the Winnipeg address.
• Following the worker's surgery on November 8, 2010, the worker spent the next four or five months during his recovery at the Winnipeg address.

Overall, while the worker may have been spending very significant amounts of time in Town A at the time of the accident (approximately 80% of his time), the evidence does not satisfy us that he no longer considered his home in Winnipeg to be his permanent place of residence. We therefore find that for the purposes of vocational rehabilitation, the worker's place of residence should be considered Winnipeg.

The worker'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 13th day of November, 2014