The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to reimbursement for additional travel expenses related to their travel between their residence and place of employment. A file review was held on May 18, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to reimbursement for additional travel expenses related to their travel between their residence and place of employment.

Decision

The worker is not entitled to reimbursement for additional travel expenses related to their travel between their residence and place of employment.

Background

The WCB accepted the worker’s claim for a small partial thickness intrasubstance tear, initially diagnosed as a right shoulder strain, as the result of a workplace accident that occurred on April 17, 2021 after they cranked a mechanism on a vehicle and injured their shoulder. The worker sought medical treatment, was treated with physiotherapy and returned to work on modified duties on June 21, 2021.

On August 10, 2021, the worker contacted the WCB to advise due to increasing symptoms as a result of a two week trial of their full duties, their treating physician had placed them off work from August 9, 2021 to September 13, 2021. The worker returned to light duties on August 23, 2021.

The worker contacted the WCB on September 15, 2021 with a request for information on travel expenses. The worker advised the WCB that before the workplace accident, they would normally drive their personal vehicle from their home to the employer’s worksite in Winnipeg then drive an employer’s vehicle to the employer’s alternate worksite in Brandon each Monday, returning with the employer’s vehicle to the Winnipeg worksite on Friday, and then driving their personal vehicle home. While performing the light, modified duties with the employer, the worker noted they drove their personal vehicle to the Winnipeg worksite each workday and asked the WCB to reimburse them for their additional mileage resulting from the accident.

On September 16, 2021, the WCB spoke with the employer who confirmed they do not allow workers to take the employer’s vehicles home. The WCB also spoke with the worker the same day regarding this request and advised that as it was their request to be transferred from the employer’s Brandon worksite to the one in Winnipeg, they were not entitled to mileage as driving to work daily was a personal expense.

On November 4, 2021, the worker’s representative requested the WCB reimburse the worker for their mileage noting the worker was not previously required to drive to their worksite 5 times per week and requested the WCB reimburse the worker for the 4 extra trips they were now required to make. On November 8, 2021, the WCB provided a decision letter to the worker indicating they were not entitled to mileage for the drive from their worksite and back as the employer confirmed the worker would not normally have a company vehicle at home and they would have to drive to the worksite every day to pick one up. Further, it was the worker’s decision to request a transfer back to the Winnipeg worksite from the Brandon worksite. In a letter dated December 6, 2021 to the worker’s representative, the WCB confirmed the decision that the worker was not entitled to mileage for driving to the worksite every day.

On February 1, 2022, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. In their submission, the representative noted the worker was incurring out of pocket expenses now that they are required to drive to their worksite every day and that prior to the accident, the worker only drove to their worksite one day per week, having use of a company vehicle during the week. When placed on modified duties, the worker was required to drive to the worksite 5 times per week and the representative requested the worker be reimbursed for the extra 4 trips per week they were making.

Review Office determined on April 8, 2022 that the worker was not entitled to mileage reimbursement to attend work. Review Office found the worker had made a personal choice to move their employment to Winnipeg, which caused an increase in the travel distance to the worksite based on the increased number of trips, but the worker was not entitled to reimbursement for the increased mileage.

The worker filed an appeal with the Appeal Commission on March 6, 2023 and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB established Policy 44.120.10, Medical Aid (the “Policy”) to define key terms and set out general principles regarding a worker's entitlement to medical aid. The Policy notes that medical aid, as defined in the Act, includes treatment or services provided by healthcare providers. Schedule D to the Policy addresses travel and emergency expenditures, and sets out, in part, that:

The purpose of this Schedule is to set out the general principles related to reimbursement of expenses incurred to attend compensable medical treatment. 

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.

Worker’s Position

The worker represented themself in the appeal and provided a written submission to the panel in advance.

The worker’s position is that they should be entitled to reimbursement for the additional mileage incurred in travelling to and from work as this increase occurred because of the employer’s decision to relocate the worker to another worksite. The worker noted that WCB provides mileage reimbursement “based on the location of the work and residence at the time the accident occurs.” The worker submits that the relocation was assigned and that they did not ask for a change in work location after the injury was sustained, but sought that transfer at an earlier date, being in May 2020, after they were first hired by the employer.

The worker acknowledged that the employer has accommodated them with light duties without issue and noted that the employer also advised them of the change in work location and transfer on short notice. The result has been that the worker is travelling 37 km to and from work each day, Monday through Friday for a total of 74 km daily, in order to undertake the assigned light duties resulting from the injury sustained in the compensable workplace accident. The worker noted that in their pre-accident job duties, they travelled to and from that location once every 6 to 12 days, depending on their specific job responsibilities and schedule.

The worker further outlined the details of their job responsibilities with the employer prior to the accident. The worker provided a chronology of their employment with the employer, noting that they first worked with the employer from January 2014 to April 2019, and then returned to work with the employer in February 2020 continuing until the present, with the transfer to the Winnipeg location occurring in July 2021. In January 2023, the worker accepted a full-time office position with the employer based in the Winnipeg location.

The worker further described the Brandon-site accommodations where they stayed during the week when working out of that location, noting that there were costs associated with dining out and that the facilities were “not conducive to any comfort, support or potential healing.” The worker stated that “Thankfully my initial and continuous transfer request was successful. This helped me be at home to have my [spouse’s] support.”

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal arises out of the worker’s request that the WCB compensate them for the additional transportation costs they incur in traveling to and from work 5 days per week during their post-injury accommodation with the employer. As detailed in the reasons that follow, the panel was unable to determine that the worker is entitled to such compensation and therefore the worker’s appeal is denied.

The panel considered the evidence that the worker had an arrangement with the employer that limited their transportation costs prior to the accident. The worker’s position is that they are entitled to reimbursement of additional transportation costs incurred in traveling to and from work five days per week as a result of their inability to continue with their regular job duties due to the compensable workplace injury, because they are no longer able to take advantage of the convenience of the employer’s previous arrangements which allowed the worker to travel, not to their actual worksite in Brandon using their own vehicle, but to the Winnipeg worksite with subsequent travel in the employer’s vehicle to and from the Brandon location. As outlined in the file information, before the accident, the worker would stay in accommodations provided by the employer and use the employer’s vehicle from Monday to Friday weekly, returning to the Winnipeg worksite at the end of each week and driving home from there in their own vehicle. The panel finds that this arrangement was effectively a kind of benefit to the worker provided by the employer as part of the employer-employee relationship.

The worker submitted that the Medical Aid Policy permits the WCB to compensate the worker for their additional travel expenses due to the loss of this arrangement resulting from the location of the modified duties provided by the employer to accommodate the worker’s compensable injury. The panel noted that although the worker argues they incurred additional expenses due to the employer’s decision to relocate the worker to the Winnipeg worksite, the employer provided information that the worker had requested the transfer. Regardless, the panel finds that this is not a relevant factor for consideration under the provisions of the Act and Medical Aid Policy.

The panel notes the provisions of the Policy set out:

“…general principles regarding a worker's entitlement to medical aid. This policy uses the term health care services interchangeably with medical aid. The Schedules to this policy provide additional detail concerning the payment of drugs and medications, medical devices and appliances, non-traditional treatments, travel and emergency expenditures, and appliances damaged or lost as a result of an accident.”

The Policy itself arises out of the provisions of s 27 of the Act which creates an entitlement to medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.” While reimbursement for transportation costs to attend medical appointments in excess of ordinary mileage to and from the workplace is contemplated in the Policy, reimbursement for a worker’s transportation costs to and from the workplace is not contemplated. Schedule D of the Medical Aid Policy sets out “general principles related to reimbursement of expenses incurred to attend compensable medical treatment” (emphasis added). The panel finds that this provision does not allow for or provide any discretion in relation to reimbursement of expenses incurred to attend anything other than compensable medical treatment. More specifically, we find that the Medical Aid Policy does not provide or permit the WCB to reimburse a worker for their expenses incurred to attend work, regardless of whether that work is their usual or modified duties or otherwise.

On reviewing the applicable legislation, the panel is satisfied that the costs of personal transportation to and from one’s employment are not compensable expenses under the provisions of the Act. We find that these costs are generally the responsibility of employees personally and do not fall within the compensation scheme created under the Act. The provisions of the Policy are consistent with this finding, as those provisions also do not contemplate any reimbursement or compensation for travel expenses related to daily transportation to and from employment.

On the basis of the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker is not entitled to reimbursement for additional travel expenses related to their travel between their residence and place of employment. Therefore, the worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of June, 2023