The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further travel expenses related to his attendance at school/practicums. A file review was held on October 3, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further travel expenses related to his attendance at school/practicums.

Decision

The worker is not entitled to further travel expenses related to his attendance at school/practicums.

Background

The worker has an accepted claim for a crush injury to his left lower leg and foot from a workplace incident that occurred on May 30, 2000.

As the worker was unable to return to the employment he had prior to the workplace incident, the WCB referred him for vocational rehabilitation services. In 2010, the worker began a vocational rehabilitation plan for NOC (National Occupation Classification) 4141 - Secondary Teacher was developed, with a planned end date of November 27, 2015.

On July 20, 2016, the worker requested the WCB to review his entitlement to travel expenses while he was attending the related practicums for school. It was noted that the WCB had already reimbursed the worker for his travel expenses, in the form of the lowest cost of transportation which was reasonable pursuant to the WCB policy, to and from the school and his home.

The WCB advised the worker on September 20, 2016 that they had reviewed his travel expenses and determined that there were five individual practicums per year that he attended school (2011 - 2015). The WCB provided the worker with a copy of their calculation and advised that he would be reimbursed based on the weekly and monthly rates charged by the transit system for the periods he would have been attending the practicums.

The worker's representative requested reconsideration of the WCB's decision to Review Office on May 30, 2017. The worker's representative disagreed with the WCB's decision to use the transit system's rates to reimburse the worker as the worker drove his personal vehicle to and from the required practicum sessions and should be entitled to further travel expenses. The worker's representative noted that due to the worker's permanent restrictions of no prolonged standing, able to elevate foot as needed, no ladder climbing and no walking on uneven ground, it was unreasonable to expect the worker to commute to and from his practicum sessions by transit. It was noted that travelling by personal vehicle was the worker's only viable travel option as travelling by transit may have put the worker at risk for aggravating or enhancing his foot injury. As such, the worker's representative submitted that the worker should be entitled for further travel expenses based on mileage, in addition to parking expenses.

Review Office found that the worker was not entitled to further travel expenses for his attendance at school/practicums. Review Office acknowledged the worker's permanent restrictions with respect to his left foot, however, Review Office determined that it was reasonable for the worker to be reimbursed for the lowest cost of the travel expenses, being transit fare, in keeping with the WCB's policy.

The worker's representative filed an appeal with the Appeal Commission on February 16, 2018. A file review 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.

Subsection 27(20) of the Act provides that:

Academic, vocational, 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.

The WCB Board of Directors enacted WCB Policy 43.00, Vocational Rehabilitation (the "VR Policy"). It explains the goals and describes the terms and condition of vocational assistance available to a worker pursuant to subsection 27.20 of the Act. It provides, in part:

VI. Allowances

1. In some circumstances, injured workers will be eligible for reasonable allowances to cover additional costs required because of a vocational rehabilitation program or the compensable rehabilitative needs of the injured worker. When paid, the WCB will monitor the allowance. Available allowances include: …

c) Travel Expenses - When participation in an activity related to vocational rehabilitation involves travel expenses in excess of those which existed prior to the compensable injury, these additional expenses will be paid or reimbursed by the WCB under the following conditions:

i. A requirement for the worker's personal payment of travel costs is shown to the satisfaction of the WCB to constitute sufficient financial burden so as to prevent reasonable participation in the rehabilitation service;

ii. The travel costs for a particular vocational rehabilitation activity exceed the costs associated with the worker's pre-injury employment; or,

iii. The travel costs are a temporary alternative to relocation of the worker, prior to actual job placement.

iv. The WCB will pay for travel costs on the basis of the method of transportation which represents the lowest cost and is reasonable for the worker to accept.

v. Travel costs may include:

• Bus fare.

• Parking fees (based on receipts).

• Mileage allowance, at equivalent rates as paid to WCB employees.

• Airfare.

vi. The WCB will not normally reimburse workers for costs arising out of a personal travel choice made by the worker when the WCB did not initiate that choice.

Worker's Position

The worker was represented by a worker advisor. In the worker's appeal form, the worker's representative submitted that the worker was appealing "because the methods of travel for which the worker was reimbursed to attend his post-secondary studies was not reasonable for the worker to accept in view of his extensive restrictions." The worker is seeking reimbursement of travel expenses related to his attendance at school/practicums.

The worker's representative provided a copy of the written submission which was prepared for the worker's request for reconsideration before the Review Office. The submission indicated, in part, that:

By way of letter dated September 19, 2016, the worker was informed that $2217.70 would be reimbursed to him representing travel expenses to attend school practicum during the years 2011-2015. A detailed explanation for this amount is contained within a June 23, 2016 claim memo. As can be seen, this calculation was reached based on City of Winnipeg Transit rates during that period.

We disagree with the case manager's chosen reimbursement method because throughout this time period, the worker drove his personal vehicle from his home in [town], Manitoba to Winnipeg to attend his educational program. More importantly, considering the worker's extensive permanent restrictions, we submit it was unreasonable for the WCB to have expected the worker to commute by bus.

[Section 27(20)]

This section of the Act appears to provide WCB staff broad, discretionary authority to fund without limit virtually anything that might assist an injured worker…

[excerpts from WCB policy 43:00]

As emphasized above, cost is not the sole consideration to be made by the WCB when compensating an injured worker for travel expenses. The method of transportation must also have been reasonable for the injured worker to accept.

In this worker's case, he sustained a crush injury to his left foot resulting in the amputation of his great toe…Permanent restrictions related to the left foot consist of no prolonged standing, able to elevate foot as needed, no ladder climbing and no walking on uneven ground.

By expecting the worker to have caught Winnipeg Transit buses to attend school practicum, the case manager has in my view failed to properly account for the worker's permanent restrictions. Had the worker done so, he would likely have been exposed to prolonged standing (i.e. while waiting for a bus and possibly without a bus bench to sit down and elevate his foot when needed. If the bus the worker caught was full with passengers, and/or late, he may have had to stand for a prolonged period of time), as well as walking on uneven ground (i.e. catching multiple buses to reach his destination; the bus stop might have been a far distance from the school he was to attend; practicum periods occurred in winter months as well where the worker would likely have been exposed to uneven ground by virtue of snow and ice accumulation).

In summary, although the WCB did not initiate the worker's decision to travel by vehicle, for all the reasons specified herein, we submit this was his only viable travel option. Had the worker undertaken to travel by bus, we submit he would likely have placed himself at risk for aggravating or enhancing his foot injury, which might then have delayed or jeopardized his VR plan. We therefore submit that the worker's travel reimbursement should have been based on mileage, in addition to parking expenses where accumulated.

The file also shows the worker was reimbursed travel expenses from his home in [town] to Winnipeg where he attended post-secondary studies. This was based on the monthly cost of a [name] Bus transit pass.

As per a November 12, 2014 claim memo, the worker explained to a case manager that it was a 2-block walk from his home to catch the [name] Bus on Main Street in [town]. He advised me this walk would take roughly 15 minutes and likely longer during winter months due to snow and ice accumulations. Beyond this, he told me [name] Buses were often full, meaning he might have to stand while travelling to Winnipeg if no one offered him a seat.

This being the case, the worker is also seeking to be reimbursed for school mileage and parking expenses beyond what the WCB has already provided.

Employer's Position

The employer did not participate in the decision.

Analysis

The issue before the panel is whether or not the worker was appropriately reimbursed for travel expenses related to school and practicum attendance. For the worker's appeal to be approved, the panel must find that the worker was not appropriately reimbursed for travel expenses related to school and practicum attendance. The panel was not able to make this finding. The panel finds that the worker was properly reimbursed for travel expenses in accordance with the VR Policy.

In considering this appeal, the panel has considered the worker's physical condition and his accepted physical restrictions. The panel notes that the worker has permanent physical restrictions as follows:

• no prolonged standing,

• able to elevate foot as needed,

• no ladder climbing and

• no walking on uneven ground

There is little evidence about the distances the worker was required to walk or the surface he had to walk upon. A memo on the worker's file dated November 12, 2014 indicates that the worker was not using bus service from his town to Winnipeg, rather he was driving his own car. The worker advised that it is a two block walk to catch the bus on Main Street in his community, which meant he must walk four blocks to get to and from the bus.

The panel finds that the evidence does not support a finding that the distance is significant or that the worker was required to walk on uneven ground contrary to his restrictions. The panel also notes that in driving his vehicle, the worker would have to walk from the parking area to the school. There is also no evidence that the worker required special parking passes, meaning that the worker would have to walk varying distances to the school in all weather conditions. As well, there is no information that use of public transportation had a negative impact on the worker's completion of his school/practicum.

The panel finds, on a balance of probabilities, that the use of public transportation and the payment of bus fare was appropriate in this case. This is consistent with the VR Policy which provides:

The WCB will pay for travel costs on the basis of the method of transportation which represents the lowest cost and is reasonable for the worker to accept.

Given this finding, the worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of October, 2018