The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 20, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being November 15, 2000.

Issue

Whether or not the claimant's vocational rehabilitation plan was appropriate;

Whether or not the WCB should retrain the claimant as an automobile mechanic; and

Whether or not the claimant is entitled to full wage loss benefits subsequent to September 3, 1999.

Decision

That the claimant's vocational rehabilitation plan was not appropriate;

That the WCB should retrain the claimant as an automobile mechanic; and

As benefits have been paid to the claimant up to this date (per Appeal Panel Excerpt No. 40/99) benefits should continue to be paid in accordance with WCB's policies regarding vocational rehabilitation.

Background

In August 1996, the claimant amputated four fingers of his left hand distal to the metaphalangeal joint during the course of his employment as a labourer with a wood products manufacturing plant. The claim was accepted by the Workers Compensation Board (WCB) and the claimant received wage loss and vocational rehabilitation benefits as a result of his injuries. In September 1998, the claimant re-entered the work force after being trained as a CNC machine operator.

On December 29, 1998, a worker advisor appealed the decision of a Vocational Rehabilitation Consultant to have the claimant trained in the field of a CNC machine operator. The worker advisor referred to file correspondence which indicated that the claimant was only interested in the automotive field and would have liked to become an automobile mechanic.

In a decision dated March 19, 1999, Review Office confirmed that the decision to provide the claimant with retraining as a machine operator was consistent with WCB policy and practice. It determined therefore that the claimant's vocational rehabilitation program was appropriate and that the claimant should not be retrained as an automobile mechanic.

In subsequent correspondence, the worker advisor appealed Review Office's decision. An Appeal Panel hearing took place on July 20, 1999. At this time, the Panel determined that the claimant should undergo a Functional Capacity Evaluation (FCE) at the WCB in order to evaluate his ability to become an automobile mechanic. It was also determined, pending receipt of the FCE results, that the claimant should continue to receive ongoing benefits from the WCB.

On September 14, 1999, the claimant underwent a FCE at the WCB and the report was forward to the Appeal Panel for review. On September 23, 1999 the Panel met briefly and noted the following recommendation that had been outlined in the FCE report, i.e. "that an Occupational Therapist from WCB attend to evaluate the performance of the client in the work environment." The Panel determined that this recommendation should be carried out and the case was forwarded back to the WCB to make the appropriate arrangements.

On May 23, 2000, the Panel met again to discuss the case in light of the information that was received from the WCB's occupational therapist, employment specialist and a Vocational Rehabilitation Consultant. The Panel also considered a 16 page document that was submitted by the claimant's worker advisor. Following discussion of the case, the Panel referred the case back to the WCB in order to arrange for the claimant to undergo a formal work site assessment with a general mechanic to determine whether he could perform the duties of an automobile mechanic. Arrangements were subsequently made for the claimant to undergo a series of four workplace assessments for the purposes of determining his physical ability to perform the duties of a motor vehicle mechanic. An October 25, 2000, report was later received from the occupational therapist outlining his findings. The report was forwarded to the interested parties for comment.

On November 15, 2000, the Panel met to render its final decision based on the information on file including a final submission by the worker advisor dated November 6, 2000.

Reasons

The claimant, while cleaning a saw, sustained a rather severe compensable injury, which resulted in multiple digital amputations to his left hand. Following the accident, the WCB assigned a vocational rehabilitation counsellor to the case and a formal rehabilitation plan was eventually initiated. The claimant requested that he be retrained as an auto mechanic, but the WCB insisted that he would not be capable of performing such duties as were defined by the National Occupation Classification of Motor Vehicle Mechanics (NOC 7321).

The WCB considered an auto mechanic's job would definitely be beyond the claimant's physical capabilities given the nature of his compensable injury. Much to the claimant's frustration, he was enrolled in a CNC machine operator's program as opposed to his being trained in the field of automotive mechanics. On or about May 15th, 1997 the claimant advised his vocational rehab counsellor that he was not very happy with the way the plan for his rehabilitation was going. He again reaffirmed that his only interest was in the automotive field.

The claimant was extended the opportunity to speak on his own behalf at the conclusion of his hearing. He stated to the Panel, "I just feel that I should have - - that the WCB misled me in my case and I feel that I should be able to have a chance to prove that I can do the automobile mechanics". At our request, the WCB arranged for a formal work site assessment to be conducted involving the claimant and a general mechanic for the purpose of determining whether or not the claimant could physically perform the duties of an auto mechanic. A series of four workplace assessments were subsequently conducted.

The occupational therapist, who organized the various work assessments, prepared a very detailed and lengthy twenty-page report. In the summary and conclusion portion of the report, the therapist outlined the claimant's work abilities and limitations. He recorded no apparent restrictions, no safety concerns and no performance difficulties with respect to the claimant's work capabilities. The occupational therapist concluded his report by saying:

"In summation, the largest barrier observed in the client's ability to perform tasks assigned during the time of his workplace assessments was that of specific working knowledge. Mr. [the claimant] was able to demonstrate a good general knowledge of equipment use and basic activities but encountered more difficulty in performing activities that he had no specific knowledge of (sic). He also demonstrated the ability to quickly learn new activities and his productivity level objectively increased as his area of knowledge increased. This observation was reaffirmed in all discussion with his coworkers and managers at the workplace. Given his motivation to pursue this field, his background knowledge off automotive mechanics, and his ability to modify his techniques and positioning to address his restrictions it would appear that Mr. [the claimant] would be a suitable candidate for retraining in this field."

We were very impressed with the claimant's enthusiasm and confidence that he could, if given the chance, perform the duties of an auto mechanic. The foregoing report lends a great deal of support to the claimant's argument. We agree with the claimant that the initial vocational rehabilitation program was not appropriate. Accordingly, we strongly recommend that the claimant be trained as an auto mechanic.

On July 22nd, 1999, we made an interim decision to extend wage loss benefits beyond the projected termination date of September 3, 1999 while we were attempting to gather further information with respect to the claimant's functional abilities. We note that wage loss benefits have been continued to date by the WCB. In light of our findings as to the first two issues, we would expect wage loss payment to continue as provided by the WCB's vocational rehabilitation policies.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of December, 2000