The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his mileage expenses have been correctly calculated. A file review was held on November 12, 2020 to consider the worker's appeal.

Issue

Whether or not the worker’s mileage expenses have been correctly calculated.

Decision

The worker’s mileage expenses have not been correctly calculated.

Background

The WCB accepted the worker’s claim for a traumatic amputation injury that occurred at work on September 16, 2019 when his left fingers were caught between two concrete truck chutes and resulted in surgical repair by a plastic surgeon on September 25, 2019.

On October 2, 2019, the worker had an initial physiotherapy assessment where he reported difficulty moving his fingers and decreased function in his left hand and the physiotherapist noted the worker was in a lot of pain during dressing changes. The physiotherapist noted the worker was not capable of returning to work at this time due to lots of pain and it would likely be 10 to 12 weeks before he was capable of driving.

At a follow-up appointment on October 16, 2019 with the treating plastic surgeon, the worker reported pain and stiffness in his fingers and the surgeon recommended daily dressing changes to help with secondary healing. The plastic surgeon further recommended the worker could return to work with right hand duties only, if available. The temporary restriction was provided to the employer on October 22, 2019. On October 23, 2019, the employer contacted the WCB to advise they had modified duties for the worker, which the WCB determined to be suitable. The employer contacted the WCB on October 24, 2019 to advise they had contacted the worker regarding the modified duties and the worker advised he was unable to drive due to pain. On October 25, 2019, the WCB authorized the worker to take a taxi to work for 2 days the following week. The worker returned to work with accommodated duties on October 28, 2019.

On November 19, 2019, the WCB discussed the claim with the worker and advised the worker unless one of his treating healthcare providers indicated he is unable to drive, he would not be entitled to coverage for taxi service after November 22, 2019. The WCB approved reimbursement to the worker for parking and taxi cab expenses on December 16, 2019.

The worker submitted further information requesting reimbursement of his mileage on February 24, 2020. The WCB reviewed the request and information provided and advised the worker on the same date that he did not work for two of the dates he requested reimbursement of mileage for and he was not entitled to mileage to attend a meeting not related to his workplace accident. The WCB provided the worker with reimbursement based on his distance of travel “…incurred over and above [the worker’s] normal travel to work” for 4 of the requested dates.

The worker requested reconsideration of the WCB’s decision to Review Office on April 19, 2020. In his submission, the worker noted that his son drove him to work, to appointments with his physician and to physiotherapy and believed he should be reimbursed for that mileage.

Review Office determined on June 11, 2020, the worker’s mileage expenses have been correctly corrected. Review Office noted the WCB’s mileage policy provides for reimbursement for mileage incurred over and above that which a worker normally travels to and from work. The information provided by the worker was taken into account and Review Office found the calculations by the WCB to be correct. Review Office noted the worker’s opinion that his total costs of travel should be covered on the days he was driven by his son but further noted that was not the intent of the policy.

The worker filed an appeal with the Appeal Commission on June 24, 2020. A file review was arranged for November 12, 2020.

Reasons

Applicable Legislation and Policy

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

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to compensation under s 4(1) of the Act. That compensation includes wage loss, medical aid and awards for permanent partial impairment, as set out in s 37 of the Act:

Compensation payable 

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: 

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident."

The WCB has established Policy 44.120.10, Medical Aid, to provide guidance as to workers’ entitlement to medical aid under the Act. The Policy sets out, in Schedule D, the general principles related to reimbursement of expenses incurred to attend compensable medical treatment, including the following:

1. The WCB may reimburse an injured worker's reasonable expenses related to receiving compensable medical treatment such as wage-loss, travel, accommodations, meals, childcare and reasonable telephone charges. 

2. The WCB will generally reimburse only those transportation costs which are in excess of costs that would be incurred by the worker while travelling to and from work. 

3. The WCB may reimburse expenses incurred by a support person's travel, accommodation, meals and wage loss if it is determined that the injured worker's functional level requires it or if it is unsafe for the injured worker to travel alone. 

4. Reimbursement of expenses will be based on the most cost-effective alternative, taking into account the injured worker's level of function.

Worker’s Position

The worker represented himself on appeal. His position with respect to the issue on appeal is set out in the Appeal of Claims Decision form filed with the Appeal Commission on June 23, 2020. The worker stated that he was informed by his WCB case manager that he would be eligible for taxicab usage for his travel for medical appointments, and that if he needed to get someone to drive him, he would be fully reimbursed for mileage provided he maintained appropriate mileage records.

The worker noted that after a new case manager was assigned to his claim, the WCB decided on his reimbursement request that he would only be reimbursed for mileage over and above his usual work travel. This decision was, the worker stated, contrary to the information he was originally provided and that had he known this would be the result, he would have continued to use a taxi, which was fully reimbursed, rather than asking his son to drive him to appointments.

In sum, the worker’s position is that the WCB should fully reimburse the mileage expenses submitted related to trips to and from claim-related medical appointments where the worker’s son provided the transportation, and the worker was not able to drive himself.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question on appeal is whether or not the WCB correctly calculated the worker’s mileage expenses. In order to find in favour of the worker, the panel would have to determine that the WCB failed to provide medical aid required to cure and provide relief from the worker’s compensable injury. For the reasons set out below, the panel was able to make such a finding.

The WCB’s responsibility to provide medical aid to cure and provide relief from a compensable workplace injury is set out in s 27(1) of the Act and elaborated upon in the WCB’s Medical Aid Policy. As noted above, this Policy provides guidance to the WCB in terms of how benefits in relation to travel-related expenses will be calculated.

In this circumstance, the WCB applied the provision of the Policy that states it “...will generally reimburse only those transportation costs which are in excess of costs that would be incurred by the worker while travelling to and from work” with the effect that the worker was provided with reimbursement only for the difference between the costs of travelling to and from work, and the additional costs related to travelling to a medical appointment related to the compensable injury from work.

The panel considered whether the WCB properly applied the provisions of the Medical Aid Policy with respect to reimbursement of travel expenses related to attending compensable medical treatment in this case and noted that the Policy also permits the WCB to “...reimburse expenses incurred by a support person's travel, accommodation, meals and wage loss if it is determined that the injured worker's functional level requires it or if it is unsafe for the injured worker to travel alone.” It does not appear from our review of the worker’s claim file that the WCB considered whether or not to apply this provision of the Medical Aid Policy.

In considering whether or not this provision ought to have been applied, the panel considered the medical reporting on file as to the worker’s functional abilities after the amputation surgery in September 2019 and with respect to the particular period of time in which the worker claimed reimbursement for travel-related expenses, being September 19, 2019 through November 22, 2019. The worker was injured on September 16, 2019 and his surgical procedure took place on September 25, 2019. When he was assessed for post-surgical physiotherapy on October 2, 2019 it was noted that he was not capable of modified work and would likely have restrictions in place for 10-12 weeks for driving and deliveries. On October 15, 2019, the worker was assessed by an occupational therapist who provided the worker was not to have any resistive use of his left hand. The worker’s physician provided on October 17, 2019 that the worker could return to modified work with only use of his right hand. By November 4, 2019, the physician noted the worker could work with limited gripping with his left hand. On assessment November 7, 2019, the treating physiotherapist recommended the worker could return to modified work with restrictions that included no use of involved (left) hand, no cold exposure and time provided during work hours to perform exercises. These restrictions were recommended to continue for 4-6 weeks based upon the wound closure and mobility. On November 18, 2019, the worker’s physician recommended the worker could continue light duties. On December 19, 2019, the treating physiotherapist recommended continuation of the restrictions until reviewed by the worker’s treating physician on January 13, 2020.

Reviewing the WCB claim file, the panel noted that the worker spoke with the WCB adjudicator on October 4, 2019 noting he could not drive and therefore had his wife or son drive him or used a cab if they were not available. At that time, the worker was advised to keep receipts for submission. In a file memo dated October 15, 2019, the WCB claim manager noted providing the worker with a verbal explanation of medical aid entitlements including mileage. The claim manager’s notes record that:

“His son is driving him everywhere and he took a cab round trip one time. I explained that cab fare will be covered this one time but the expectation is to take a bus [or] have a family/friend take him if they have time. I noted mileage would be covered as per our policy. They will keep track and submit ongoing.”

The WCB claim manager, in an email conversation with the employer on October 24-25, 2019, proposed setting up a “taxi or handi transit” to get the worker to and from work until he was cleared to drive. On November 7, 2019, the WCB claim manager spoke with the worker and advised that an independent living assessment would be arranged to assess his need for further supports including having his son drive him to work. On November 19, 2019, the WCB case manager advised the worker that “taxi will no longer be authorized after this week unless medical indicates he cannot drive. I encouraged his son to drive him and submit time for his efforts.” On December 12, 2019, the WCB claim manager recorded a further conversation with the worker in which the worker advised he was able to drive.

The panel also considered that when the WCB assessed the worker’s short term independent living needs on November 14, 2019, recommendations were made for supports to be provided to the worker through to February 2020 based on the worker’s physical restriction of not using his left hand. In the Personal Care Allowance Assessment dated December 2, 2019, the assessing occupational therapist noted the worker’s report that “...he is not driving at this time. He reports his family physician and PT have told him that if he feels comfortable he can drive. Worker reports he is currently taking a cab to work independently.”

The worker provided his request to the WCB for travel-related reimbursement on January 30, 2020. In his request he noted that it relates only to rides given by his son for travel to and from physiotherapy (17 trips recorded) and to see his treating physician (7 trips recorded) between September 19, 2019 and November 22, 2019. He also noted two additional appointments on January 9 and 13, 2020.

The medical findings support that the worker had compensable restrictions in place with respect to not using his left hand through to January 2020. Although he returned to work in late October, it was to modified duties within his restrictions and the WCB initially authorized a period of limited travel to work by taxi. The Independent Living Assessment report of December 2, 2019 noted that the worker was not driving at that time and indicated he was not to do so until he felt comfortable doing so. By December 12, 2019, the file evidence confirms the worker was able to again drive himself to and from appointments.

On the basis of the totality of evidence reviewed, the panel is satisfied, on a balance of probabilities, that the worker's functional level was such that he required support for travel to and from medical treatment during the period from the date of the compensable injury to December 12, 2019 when he confirmed to the WCB that he was again able to drive on his own. The worker is therefore entitled to be reimbursed for expenses incurred to attend compensable medical treatment during this period, and in particular with respect to his claim for his support person's travel.

The panel therefore determines that the worker’s mileage expenses have not been correctly calculated. The worker’s appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of December, 2020