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 reimbursement for mileage expenses from his current residence. A file review was held on February 14, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to reimbursement for mileage expenses from his current residence.

Decision

That the worker is not entitled to reimbursement for mileage expenses from his current residence.

Background

The worker injured his right shoulder in a workplace accident on May 4, 2000. His claim was accepted and wage loss and various medical aid expenses have been paid.

The worker underwent surgery on September 20, 2000 to repair a right shoulder rotator cuff tear. The worker suffered a recurrent tear, and a second surgery was performed on July 12, 2002. The worker moved to another province in late 2002, where further right shoulder surgery was performed on December 2, 2003.

The worker moved residences several times over the years, and mileage expenses incurred to attend medical appointments therefore varied. Certain mileage expenses were approved for medical treatments where the distance travelled was greater than if the worker had remained at his original residence in Manitoba.

On April 19, 2004, the worker was advised that his mileage would be paid by the WCB based on his residence and distances to attend medical appointments at the time of the accident.

On June 10, 2015, while still residing in the other province, the worker had further rotator cuff repair surgery on his shoulder. On July 6, 2015, the WCB authorized reimbursement for mileage from where the worker was residing at that time to the closest treatment provider for physiotherapy and to the treating surgeon.

On November 22, 2017, the worker had additional surgery on his right shoulder in the other province. The worker was paid mileage of 299 kms to attend each of the November 22, 2017 surgery and two appointments with the treating surgeon on December 6, 2017 and January 10, 2018, respectively.

The worker moved back to a new location in Manitoba in October 2017. In a conversation with his case manager on December 27, 2017, the worker advised that he had been paid in advance for travel to an appointment with his doctor in January 2018, but this was based on his old address in the other province. The worker indicated that he did not have a doctor in Manitoba yet. On December 29, 2017, the case manager advised the worker that his travel expenses for the January 2018 appointment would not be covered from his new home address but would remain the same.

On February 16, 2018, Compensation Services advised the worker that his entitlement for travel reimbursement was based on the distance from his residence at the time of the workplace accident to the nearest medical treatment at that time or 144 kms return.

On March 14, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker said he had moved to another province for work and had three surgeries while living there. He moved back to Manitoba in late 2017, but was driving back to the other province for his doctors' appointments. The distance travelled for medical treatment was therefore well over the 144 kms being covered by the WCB.

On April 6, 2018, Review Office denied the worker's appeal. Review Office found that the worker was entitled to mileage reimbursement for medical appointments "based on his residence at [name], Manitoba, at the time of the accident." Review Office stated that it was WCB practice to cover mileage over and above what the worker normally travelled to work, to compensate the worker for extra expenses incurred as a result of the workplace injury. Review Office stated that the WCB covers mileage from the place of residence at the date of the accident to the nearest centre for medical treatment, surgical appointments or diagnostic testing; it does not cover extra mileage expenses as a result of moving to more remote areas requiring extra travel.

Review Office went on to note that the mileage had been paid incorrectly for basically all of the claim. Review Office found that the 144 kms being used was incorrect and should be adjusted to 154 kms for surgeon appointments or diagnostic testing, and returned the file to Compensation Services to determine correct mileage for physiotherapy and general doctor appointments in relation to the workplace injury.

On September 27, 2018, the worker filed an appeal with the Appeal Commission, and a file review was arranged.

Reasons

Applicable Legislation and Policy

The worker is seeking reimbursement for mileage expenses from his current residence to attend medical treatment.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

As the worker was employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act ("GECA"), subsection 4(1) of which provides that an employee who suffers personal injury by an accident arising out of and in the course of his employment is entitled to compensation.

Pursuant to subsection 4(2) of GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.

The payment of compensation for medical expenses falls under the heading of medical aid.

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."

WCB Policy 44.120.10, Medical Aid (the "Policy"), addresses the subject of medical aid. In describing its purpose, the Policy states:

The Medical Aid Policy presents a comprehensive and coordinated approach to 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.

Reimbursement of expenses to attend compensable medical treatment is addressed in section 3(a) of the Policy, which provides, in part, as follows:

3. Expenses

a. Expenses Incurred to Attend Compensable Medical Treatment

i) The WCB will reimburse an injured worker's actual reasonable expenses related to travelling to medical treatment (wage-loss, travel, accommodations, meals and reasonable telephone charges) which are in excess of costs normally incurred by the worker while travelling to and from work. 

… 

iii) All travel reimbursements should be based on the most cost-effective alternative and take account of the injured worker's medical functioning level.

Worker's Position

The worker's appeal proceeded by way of a file review.

The worker provided a written submission dated January 31, 2019, in which he indicated he is seeking reimbursement of mileage expenses based on the distance travelled to and from medical appointments or treatments from his current address. The distance travelled was said to be 2,164 kms as opposed to the 154 kms paid or covered by the WCB.

The worker stated that his case manager knew he had moved back to Manitoba in the summer of 2017. He had surgery on his shoulder on November 22, 2017 in the province where he had previously been residing. He submitted that if the WCB was not going to cover the expenses of travel for that surgery, it was up to them to say something so he could have cancelled the surgery and made other arrangements to have it done in Manitoba.

The worker stated that his latest surgery, a total reverse shoulder replacement, was also done in the other province, on October 9, 2018. He said the WCB arranged to have that surgery done by the same surgeon, a bone and joint specialist, who had done the previous two repairs and was familiar with his shoulder.

The worker noted that Review Office referred to mileage being covered as it had been in the past in the other province. He submitted that a review of the file indicated that mileage was covered from where he was living in that province, and had therefore been covered from his place of residence.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to reimbursement for mileage expenses from his current residence. For the worker's appeal to be successful, the panel must find that the requested mileage expenses satisfy the requirements of the Policy. The panel is unable to make that finding.

The panel finds that the worker's entitlement to coverage or reimbursement of travel expenses under the Policy is based on his place of residence and distances to medical treatment at the time of his May 4, 2000 workplace accident.

In arriving at our decision, the panel notes that the Policy establishes criteria for when travel expenses will be paid by the WCB for a worker to attend compensable medical treatment. The Policy looks to the status of the worker at the time of the workplace injury. The provision is intended to provide payment of expenses where a worker has to travel a greater distance for medical treatment than the distance he had to travel for work.

The provision limits the reimbursement to the expenses that are greater than the worker would normally have incurred when he was working. It does not matter whether the worker subsequently changes his residence. The Policy does not entitle the worker to be reimbursed for additional expenses which arise from the extra travel from and to a new or subsequent residence.

The panel notes that the worker was advised several times in the course of his claim that travel expenses would be paid based on his residence at the time of the accident and the distance at that time to the closest treatment provider or centre where he could receive medical treatment.

The panel acknowledges that there are inconsistencies on the file, where additional travel expenses or mileage were paid to the worker from time to time, but notes that this does not change the worker's specific entitlements under the Policy.

The worker submitted that if the WCB was not going to cover the expenses of travel for his surgery in November 2017, it was up to them to say something so he could have cancelled the surgery and made other arrangements to have surgery done in Manitoba. The panel does not accept that submission. The panel notes, as indicated previously, that the worker had been advised several times that his travel expenses would be paid based on his residence and distances to the nearest medical treatment as at the time of the accident. The panel also notes that the worker did not say he would have arranged to have the November 2017 surgery done in Manitoba. The panel further notes that contrary to what he has suggested he might have done, the worker subsequently had another surgery done in the other province in October 2018, knowing that his additional travel expenses would not be covered by the WCB, given that this was more than six months after the Review Office decision.

While the worker submitted that the October 2018 surgery had been "arranged" or accepted by the WCB, the panel notes that the approval of medical-aid services themselves is a separate matter which is governed by different considerations and criteria under the Policy.

Based on the foregoing, the panel is satisfied that the worker's entitlement to reimbursement for mileage expenses would be based on his place of residence and distances to medical treatment as at the time of his May 4, 2000 compensable injury.

The panel therefore finds that the requested mileage expenses do not satisfy the requirements of the Policy, and the worker is not entitled to reimbursement for mileage expenses from his current residence.

The worker's appeal is 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 15th day of April, 2019