The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to his entitlement to wage loss benefits for travel, as well as mileage and meal expenses related to his WCB claim. A file review was held on December 15, 2020 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits for travel on February 12, 2020 and March 5, 2020; 

2. Whether or not the worker is entitled to reimbursement for mileage expenses; and 

3. Whether or not the worker is entitled to reimbursement for meal expenses.

Decision

1. That the worker is not entitled to wage loss benefits for travel on February 12, 2020 or March 5, 2020; 

2. That the worker is not entitled to reimbursement for mileage expenses; and 

3. That the worker is not entitled to reimbursement for meal expenses.

Background

The worker filed a Claim for Hearing Loss with the WCB on December 2, 1992, reporting a gradual hearing loss which he attributed to his job duties with various companies. On December 14, 1992, the WCB received a copy of a medical report from the worker's treating Ear, Nose and Throat (ENT) specialist, with an enclosed audiogram indicating the worker had moderate-severe high frequency sensorineural hearing loss in his left ear, and moderate to severe mixed hearing loss in his right ear, and recommending a hearing aid for the worker's right ear. On February 2, 1993, the WCB wrote to the worker requesting further information to confirm his employment.

On May 25, 2016, the worker contacted the WCB to advise that his hearing had deteriorated further over the years and he had been advised he would require new hearing aids. The WCB gathered further information and the worker provided employment records to confirm his employment with the employer. A file note dated February 6, 2017 from the WCB adjudicator confirmed that the worker was employed by the employer between 1972 and 1975 and that noise level information on file confirmed the worker would have been exposed to noxious noise which would meet the WCB's criteria during that time period.

On April 18, 2017, a WCB ENT consultant reviewed the worker's file and opined that the worker had noise-induced hearing loss (NIHL), that the first audiogram indicating signs of NIHL was dated 1992, and that the worker would benefit from hearing aids in both ears. By letter dated April 18, 2017, the WCB's Compensation Services advised the worker that his claim for NIHL was accepted and the WCB would provide coverage of hearing aids and accept responsibility for the cost of ongoing maintenance of the hearing aids as indicated in that letter.

On August 11, 2017, the worker contacted the WCB to advise that he had to attend the hearing centre to exchange his hearing aids, and requested payment for mileage. A memorandum to file on the same date noted the worker's eligibility to mileage based on his home address in 1992, when the claim was established.

By letter dated August 11, 2017, Compensation Services advised the worker that his reimbursement for mileage would be based on his address at the time of his employment with the employer and he would be entitled to 3.4 kilometers (round trip) mileage, being the mileage to the nearest hearing centre beyond the distance he would have travelled to and from work.

On March 14, 2020, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted in his request that he had made several trips to the hearing centre to have his hearing aids repaired or adjusted, and believed he should be entitled to not only mileage for those trips but also wage loss and meal expenses. On March 18, 2020, Review Office advised the worker that they had determined it was premature to rule on his appeal as the issue of entitlement to travel expenses was still under review, and his file was being returned to Compensation Services to complete their review. By letter of the same date, Compensation Services advised the worker that due to the total travel time of just over two hours to attend the February 12 and March 5, 2020 appointments for his hearing aids, he would not be entitled to reimbursement of meals, and wage loss benefits would not be warranted.

On March 21, 2020, the worker again requested that Review Office reconsider Compensation Services' decision. Included with his request was a list of visits to the hearing centre in 2019 and 2020. On April 21, 2020, Review Office discussed the worker's appeal related to his claim for wage loss with him, and noted that the worker advised he completed his job duties while still attending the appointments on February 12 and March 5, 2020, and would not have lost earnings on those dates. On April 23, 2020, Review Office again spoke to the worker with regard to his claim for mileage reimbursement and to the August 11, 2017 letter from the WCB, and noted that the worker disagreed with his mileage being calculated from his address in 1992, as he had since moved and now lived further away. Review Office advised the worker that the appeal for his mileage reimbursement would be added to his appeal.

On May 6, 2020, Review Office found that there was no entitlement to meal allowances, wage loss benefits for time to travel on February 12, 2020 and March 5, 2020, or mileage from his current residence. Review Office noted that it is practice for the WCB to cover mileage reimbursement over and above what the worker normally travelled to work to compensate them for additional expenses incurred as a result of the workplace injury, and that in all situations, the WCB covers mileage from the worker's residence at the date of the accident and does not cover extra mileage expenses as a result of a worker moving to another residence that requires additional travel. Review Office found that the WCB would cover mileage from the worker's residence as of the date of accident, being November 20, 1992, and he was not entitled to further mileage based on his current residence, which was farther away. Review Office further determined that based on the worker's residence as of the date of accident and its proximity to the hearing loss centre, the worker would not be entitled to wage loss or meal expenses for his appointments.

On July 30, 2020, the worker filed an appeal with the Appeal Commission, and 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 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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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."

The WCB's Board of Directors has established Policy 44.120.10, Medical Aid (the "Policy"), which sets out general principles regarding a worker's entitlement to medical aid under the Act. More particularly, Schedule D to the Policy, Travel and Emergency Expenditures, sets out general principles related to reimbursement of expenses incurred to attend compensable medical treatment, and states, in part, as follows:

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

… 

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

Worker's Position

The worker represented himself on the appeal, and provided several written submissions in support of his position.

The worker's position was that he should be entitled to reimbursement for mileage from his current residence, as well as for meal expenses and wage loss benefits, related to travel expenses for appointments and attendances to address his hearing loss and hearing aid issues.

The worker noted that he lives in a small town now, having relocated before his hearing loss claim was accepted. He said he relocated at that time after another compensation situation, to be with his family and restart his employment. The worker submitted that the fact that he relocated years ago "…should not be a factor in the decision that I be refused any mileage, meal, or wages. It is the 20th century and people do move to other communities with family to better their future?"

The worker noted that he had experienced numerous issues with his hearing and hearing aids over the years, and had travelled multiple times to two different cities for treatment, including for required adjustments, repairs, and batteries for his hearing aids. He noted that the hearing centre in the city where he lived at the date his claim was established was about 75 miles or 120 kilometers from the community where he currently resides. The travel time alone for a round trip to that hearing centre is over 2.5 hours, and this does not take into account such things as

wait times while testing or repairs are being completed. The travel time required to seek treatment or attend appointments in the other city where he had also sought treatment was significantly longer. The worker said he required the hearing aids for his job, and would not be taking time off or driving to these centres or cities if he did not have to take his hearing aids in to be serviced.

In conclusion, the worker stated that he felt his request for compensation or reimbursement for mileage, meals and wage loss was reasonable. He submitted that he should not be penalized by denying him compensation for such expenses just because he does not reside at the same address as he did in 1992 when his claim was established.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss benefits for travel on February 12, 2020 and March 5, 2020.

For the worker's appeal on this issue to be successful, the panel must find that the worker suffered a loss of earning capacity on February 12, 2020 and/or March 5, 2020 as a result of his workplace accident. The panel is unable to make that finding, for the reasons that follow.

As noted earlier, subsection 4(2) of the Act provides that a worker is entitled to wage loss benefits for a loss of earning capacity resulting from a workplace accident, but no wages are payable during any period where the injury does not result in a loss of earning capacity.

The evidence on file shows that the worker travelled to the hearing centre on February 12, 2020 and March 5, 2020 to have his hearing aids repaired and reset. A memorandum to file dated April 21, 2020 documents that the Review Officer spoke to the worker with respect to the issue of lost wages for these two dates, and that she:

…Advised the worker in order to pay for wage loss benefits there has to be a loss of earnings. Asked if he completed all of his loads while still attending the appointments and he stated he did. The worker stated he did not lose earnings but he did lose time he could have spent with his family. 

… 

Advised the worker if he did not have a loss of earnings then he would not be entitled to wage loss benefits…He said he did not lose money but he lost time he could have spent with his family.

Given the worker's statements that he completed his work and did not suffer any lost time from work on either February 12, 2020 or March 5, 2020, the panel is unable to find that the worker suffered a loss of earning capacity in respect of those dates. The panel acknowledges the worker's reference to a loss of family time, but notes that the Act is specific in providing that no wage loss benefits are payable where the injury does not result in a loss of earning capacity.

In the circumstances, the panel finds that the worker did not suffer a loss of earning capacity on February 12, 2020 or March 5, 2020 as a result of his workplace accident. The panel therefore finds that the worker is not entitled to wage loss benefits for travel on those dates.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to reimbursement for mileage expenses.

For the worker's appeal on this issue to be successful, the panel must find that the requested mileage expenses satisfy the requirements of the Act and Policy. The panel is unable to make that finding, for the reasons that follow.

The panel notes at the outset that the worker has been awarded return mileage of 3.4 kilometers for travel with respect to each of his February 12, 2020 and March 5, 2020 trips. In their May 6, 2020 decision, Review Office thus stated that:

At the time the claim was established the worker lived in [city] and his entitlement for mileage was 3.4 kilometers. As the worker's place of residence on November 20, 1992, was in [city] he is entitled to mileage expenses based on his [1992 city] address and not his current residence.

The panel accepts the WCB's calculation of return mileage of 3.4 kilometers, based on the difference between the distance the worker had to travel from his home at the time of the accident to his place of employment and the distance from his home to the nearest hearing centre at that time, and notes that the worker's entitlement to that mileage is not at issue on this appeal.

What is at issue on this appeal is whether the worker is entitled to the requested additional mileage from his current residence with respect to his attendances to have his hearing aids repaired on February 12, 2020 and March 5, 2020.

In this regard, the evidence shows the worker relocated to another community with his family subsequent to the date of accident of this claim, after he suffered another accident. The worker has indicated that the additional distance from his current residence to the hearing centre is approximately 75 miles or 120 kilometers.

As noted previously, Schedule D of the Policy sets out general principles for reimbursement of expenses to attend compensable medical treatment. Point 2 of Schedule D provides that 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."

The panel finds that a worker is therefore limited to reimbursement of travel expenses for additional distances travelled based on their pre-accident residence, as this was the location from which they had been "travelling to and from work," as set out in the Policy. It is the panel's understanding that the intent of this provision is to provide payment of expenses where a worker has to travel a greater distance for medical treatment than the distance they had to travel to work when working. The Policy looks to the status of the worker at the time of the injury and it does not matter if a worker subsequently changes his residence post-accident.

As a result, the panel finds that the worker's entitlement to reimbursement of mileage or transportation expenses is based on the worker's residence at the time of his compensable injury, and he is not entitled to additional mileage based on his current residence.

Finally, the panel notes that while the worker has provided the WCB with information relating to travel on other dates for which he is claiming travel expenses, including additional mileage and travel expenses for trips to a hearing centre in another city, the acceptability of those particular expenses has not yet been considered by Review Office, and in the absence of a decision by Review Office, the panel is unable to address the worker's entitlement to those expenses.

The worker's appeal on this issue is dismissed.

Issue 3: Whether or not the worker is entitled to reimbursement for meal expenses.

For the worker's appeal on this issue to be successful, the panel must find that the requested meal expenses satisfy the requirements of the Act and Policy. The panel is unable to make that finding, for the reasons that follow.

The panel understands that entitlement to reimbursement for meal expenses or a meal allowance would generally be dependent on the length of time a person is required to be away from home.

Given our finding on Issue 2, that the worker is not entitled to mileage based on his current address, but on his address at the time his claim was established, and given the time to travel from that location to the hearing centre appointments on February 12, 2020 and March 5, 2020 would therefore have been minimal, the panel finds that the worker would not require or be entitled to payment of meal expenses in relation to those attendances.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of February, 2021