Decision #126/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to reimbursement for travel expenses to attend work after October 6, 2017. A file review was held on June 26, 2018 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to reimbursement for travel expenses to attend work after October 6, 2017.
Decision
That the worker is not entitled to reimbursement for travel expenses to attend work after October 6, 2017.
Background
The worker sustained multiple injuries when she slipped on a wet floor at work on December 16, 2015 and fell. The WCB accepted her claim and the payment of wage loss and other benefits commenced.
The worker returned to work on September 6, 2016 with temporary restrictions. The employer advised the worker on September 8, 2016 that they could not accommodate her restrictions at her current work location but she could be accommodated at a second school within their division. Due to issues with not being able to work within her temporary restrictions at the second school, the worker was advised by her employer that she could be accommodated in a third school within their division effective May 16, 2017.
Following a call-in examination of the worker by a WCB orthopedic consultant on August 16, 2017, Compensation Services determined that the worker would have permanent restrictions related to her workplace injury. On October 4, 2017, Compensation Services advised the employer of the worker's permanent restrictions, and on October 10, 2017, the employer advised the worker that they were able to permanently accommodate her with her permanent restrictions at the third school.
On October 17, 2017, Compensation Services advised the worker that as she was being permanently accommodated effective October 10, 2017, she was not entitled to additional mileage from her home to the school where she was currently employed beyond October 6, 2017.
On October 23, 2017, the worker requested Review Office reconsider Compensation Services' decision. The worker disagreed with the WCB's October 17, 2017 decision on the grounds that she would still have been working at her original job site if she had not been injured.
On December 14, 2017, Review Office determined that the worker was not entitled to reimbursement for travel expenses to attend work. Review Office noted that the worker was not guaranteed employment at a specific school but rather at a school within the employer's division. The worker was placed at a location within the employer's division. Review Office also noted that the worker could choose her own mode of transportation to work, and she was not required to bring a vehicle to work.
Review Office found that the worker's travel expenses were related to her return to work with the accident employer and were not for medical reasons. Review Office found that travel expenses to get to and from work did not meet the criteria for "academic, vocational, rehabilitative assistance" under subsection 27(20) of The Workers Compensation Act (the "Act"). Review Office stated that costs related to transportation to and from work were not considered in the legislation with the exception of medical aid and that the worker's travel costs were not related to seeking medical treatment for her compensable injury.
On December 27, 2017, the worker appealed the Review Office decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.
Subsection 27(1) of the Act provides that the WCB "…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."
Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational, or rehabilitative assistance to injured workers.
WCB Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker under subsection 27(20) of the Act.
WCB Policy 43.20.25, Return to Work with the Accident Employer (the "RTW Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.
Worker's Position
The worker's position was that she is entitled to be reimbursed for additional travel expenses (mileage) incurred to attend work due to her permanent restrictions and accommodation at a second school which is much further from her home than her pre-accident school.
The worker submitted that her entire career with the employer up until the time of the accident had been spent at the same school, which is close to her home. She stated that the collective agreement with the employer contained a seniority list, and she was very high on that list. The worker submitted that she was therefore guaranteed a position at her original school for the remainder of her career, and would not have been moved to another school if she had not suffered her workplace injury in December 2015.
Employer's Position
The employer provided a written submission. The employer's position was that they agreed with the Review Office decision not to accept travel expenses.
The employer submitted that the worker returned to work following her injury with medical restrictions which required a different assignment at a different school. It was submitted that all employees, including the worker, are employed by the school division and not by the school. There were no guarantees that the worker would have remained at the original school for her entire career. Based on the requirements of the schools, the employer can move employees to an alternative work location within their job classification.
It was further submitted that the worker was not required to have a vehicle, and the mode of transportation to and from work were not within the employer’s control.
Analysis
The issue before the panel is whether or not the worker is entitled to reimbursement for travel expenses to attend work after October 6, 2017. For the worker's appeal to be successful, the panel must find that the requested reimbursement of travel expenses falls within the requirements of the Act and Policies. The panel is unable to make that finding, for the reasons that follow.
The panel finds that it is apparent from the information on file that the worker could not continue working at her pre-injury location. The employer was able to offer modified duties and accommodate the worker at one of its other schools. Relocation of the worker to the third school in this instance was consistent with the hierarchy of arrangements as set out in the VR Policy. As such, the worker's relocation to the second school was appropriate.
The worker relied on her interpretation of the collective agreement in arguing that she was guaranteed a position at her original school for the remainder of her career. The employer disagrees. The panel does not interfere with such labour relations issues. We nevertheless recognize that the school division is the employer and the school to which the worker was transferred was within the same school division.
The RTW Policy provides that:
When a worker has not fully recovered from the effect of the injury…but is able to perform suitable work, the employer must offer the worker the first opportunity to accept suitable employment that becomes available.
The employer must also make accommodations to the work or the workplace to accommodate the needs of the worker, to the point of undue hardship.
The panel is satisfied that the employer offered the worker suitable employment in accordance with the RTW Policy. The panel is further satisfied that the RTW Policy does not provide compensation for transportation to and from work in these circumstances. The panel finds that the worker's travel expenses are related to her return to work with the employer and are not for medical reasons or related to seeking medical treatment. The panel notes that there is nothing on the medical side of the file to suggest that driving or the extra travel to and from the third school was a barrier to her accommodation. The panel is satisfied that the request for reimbursement does not fall within the criteria of subsection 27(1) or 27(20) of the Act.
The panel notes that the worker raised a further issue in her appeal form relating to the calculation of her pre-injury earnings. That issue has never been adjudicated and is therefore not properly before the Appeal Commission. The panel would encourage the worker to discuss that issue with the case manager, should she wish to pursue it.
Based on the foregoing, the panel finds, on a balance of probabilities, that the requested reimbursement of travel expenses does not fall within the requirements of the Act and Policies. Accordingly, the panel finds, on a balance of probabilities, that the worker is not entitled to reimbursement for travel expenses to attend work after October 6, 2017.
The worker's appeal is therefore dismissed.
Panel Members
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of August, 2018