The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 27, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on March 27, 2001.

Issue

Whether or not the claimant is entitled to further preventive vocational rehabilitation.

Decision

That the claimant is entitled to further preventive vocational rehabilitation.

Background

This case has been subject of a previous Appeal Panel decision, decision no. 85/00, and as such, the background will not be repeated in its entirety.

Briefly, on April 12, 1996, the claimant sustained injury to his left shoulder, arm and elbow while lifting a door. The claim was accepted by the WCB and benefits issued. The claimant was diagnosed with a left rotator cuff tendonitis, an incomplete cuff tear as well as a pre-existing condition of a sharp hook to the anterior lift of the acromion. The claimant then developed similar complaints affecting his right shoulder for which surgical intervention was also implemented.

Benefits were provided to the claimant to July 2, 1998 at which time the Workers Compensation Board (WCB) had determined that the claimant’s ongoing difficulties were no longer related to the compensable event. The claimant was also notified that his case would be referred for consideration with respect to entitlement to preventive vocational rehabilitation services.

On September 11, 2000, the Appeal Panel determined the following:

That the claimant had recovered from the effects of the compensable left shoulder injury; and,

That the claimant is not entitled to further wage loss benefits beyond July 2, 1998 with respect to the injury of the left shoulder; and,

That the claimant had not recovered from the aggravation of the pre-existing condition of his right shoulder until November 26, 1998; and,

That the claimant is entitled to benefits and services including wage loss with respect to the right shoulder from the date of his right shoulder surgery, September 10, 1998, up to and including November 26, 1998.

By letter dated April 20, 1999, the vocational rehabilitation consultant (VRC) assigned to the file, wrote to the claimant to advise that he met the criteria for preventive rehabilitation benefits and services. The claimant’s aptitudes were assessed and a vocational rehabilitation plan was developed with the goal of providing the claimant with the tools necessary to enter the field of Sales Representative. The plan components included:

• an entry level computer course
• educational upgrading
• participation in a one year Commerce/Industry Sales and Marketing Program
• participation in work experience placements and job search

In September and October, 1999, information was received suggesting the claimant was experiencing some degree of difficulty in the areas of reading and math. The VRC discussed these difficulties with the claimant as well as with the course instructors. The VRC indicated in a memorandum to file dated October 5, 1999 that it would be the priority to provide the claimant with the necessary academic support to assist him to overcome his academic difficulties. According to a memorandum dated November 8, 1999, the WCB was advised that the claimant was making steady progress in his grade 10 program and was gradually gaining confidence in his academic abilities. Although the claimant was still behind in his courses, he was closing the gap. In or about December 1999, the WCB approved costs associated with parking and tutorial assistance for the claimant to assist him in completing the academic upgrading class on time.

A meeting was held on February 7, 2000 which involved the VRC, the claimant and the counselor at the community college. At that time, it was learned that the claimant did not complete the grade 10 program. Although the claimant did pass the reading comprehension and spelling tests, he did not complete the math portion of the program and would require an additional 4 to 6 weeks to complete the program. The claimant was advised that the WCB would not extend the academic upgrading program. It was explained that given the academic support available, the claimant’s demonstrated difficulties and the increased costs associated, the VRC would not be in a position to support this vocational alternative. It was suggested however, that perhaps a new vocational rehabilitation plan that would still meet the criteria of the policy could be arranged.

The VRC and the claimant subsequently met to discuss the possibility of retraining in other fields however, it was felt that these options would not meet the cost-effectiveness criteria as set out in the covering policy. In the meantime, the claimant had found alternative employment.

On February 16, 2000, the VRC discussed this case with the Acting Director. It was determined after having taken into consideration the claimant’s experienced difficulties in his academic upgrading program which delayed the completion of the plan, the increased costs associated with this delay, that the plan would no longer meet the benefit-cost ratio as set out in policy. As such, it was determined that the claimant would no longer be entitled to rehabilitation services under the preventive policy. It was recommended however, that the claimant be provided with 12 weeks of benefits and services to assist him in a job search. By letter dated February 17, 2000, the claimant was advised that his entitlement to benefits would end effective February 16, 2000. However, as the claimant had secured alternate employment on his own, job search assistance was not implemented.

On March 22, 2000, a union representative submitted an appeal to the WCB’s Review Office requesting that the claimant’s entitlement to preventive vocational rehabilitation be restored. Review Office considered this appeal and by letter dated June 30, 2000, determined that the claimant was not entitled to further preventive vocational rehabilitation. In reaching this conclusion, Review Office indicated the following:

“…The claimant required an additional 20 weeks to complete his upgrading. The associated wage loss benefits would be approximately $8,864.60. Amending the preventative vocational rehabilitation plan to account for this would mean that it would no longer be cost effective. In addition, Review Office is concerned that slippage so early in the plan may well be a precursor of future delays (with corresponding increased costs).”

On September 18, 2000, the union representative submitted an application to appeal requesting an oral hearing be convened before an Appeal Panel to determine the claimant’s entitlement to further preventive vocational rehabilitation benefits and services.

Reasons

WCB policy 43.10.60 deals specifically with the subject of preventive vocational rehabilitation. Generally speaking, preventive rehabilitation will only be afforded to a worker in those situations where he or she "has sufficiently recovered from the effects of a compensable injury to return to work and no benefits would otherwise be payable, but the WCB considers, after review of all relevant information, that a return to the previous occupation or industrial process poses a significant risk of further compensable disability, recurrence, aggravation, or similar injury." The obligation on the part of the WCB to provide such rehabilitation assistance is not mandatory, but rather, it is discretionary.

A fairly exhaustive approach is undertaken by the WCB in assessing a worker's potential eligibility for preventive vocational rehabilitation services prior to his or her recovery from the effects of the compensable injury. The policy identifies certain criteria, which must be satisfied before a worker qualifies for receipt of these particular services or benefits. The criteria are as follows:

• a worker has experienced a compensable injury, and it is the opinion of the WCB, after review of all relevant information, that a return to the previous occupation or industrial process is likely to cause a further, compensable disability recurrence, aggravation, or similar injury. The determination of the likelihood of further physical injury or occupational disease and loss of earning capacity may be due to the worker's susceptibility or sensitivity associated with the compensable injury or due to a pre-existing condition of the worker which significantly increases risk factors, and,
• there is a reasonable expectation of success in preparing for alternate employment, and,
• savings at least equal to projected costs can be predicted with a cost-benefit analysis, and,
• a comparable service is not available, from some other source, at no cost to the WCB.

The underlying major premise of the WCB's offering of preventive vocational rehabilitation assistance is to provide an injured worker with the opportunity for reemployment in an occupation or industrial process, which would not likely give rise to a similar compensable injury. Part of the work-up included in the development of a preventive vocational rehabilitation plan involves the calculation of potential future claims costs. According to the administrative guidelines contained in policy 43.10.60, "any preventive vocational rehabilitation intervention must be cost-effective. There must be a demonstrable cost saving to providing preventive vocational rehabilitation services when compared to the projected cost of not intervening." The generally accepted standard of cost effectiveness employed by the WCB is that the overall cost of a preventive vocational rehabilitation plan should not exceed 50% of potential future claim costs.

In the present case, the WCB designed an individualized written rehabilitation plan for the claimant on or about April 16th, 1999. In order to assist the claimant's attaining his occupational goal of becoming a sales representative (National Occupation Code: 6411), the WCB undertook to furnish the following services:

1. Academy of Learning will provide training in entry-level computer courses.
2. Red River Community College (RRCC) will provide Mr. (the claimant) with an academic upgrading, including an Adult Grade 10 and 11B program.
3. RRCC will provide instruction and training in the Commerce/Industry Sales and Marketing Program.
4. Job Finding Club will provide instruction and training for the purpose of job placement.
5. Employment Services will provide assistance with job searching for the purpose of job placement.
6. Employment Services will provide assistance in obtaining a suitable work experience placement.
7. The WCB of Manitoba will provide Mr. (the claimant) with full wage loss benefits and a transportation allowance during his active involvement in the course of this plan.

The overall duration of the plan was scheduled to run from April 16th, 1999 to April 13th, 2002.

There are several memoranda on file, which document the claimant's ongoing participation in the vocational rehabilitation program. The following are some of the more noteworthy excerpts:

September 6, 1999 - "[The claimant] contacted me on September 6, 1999 to let me know that he has settled in his new class and that he does not have any concerns, at the present time. I further recommended that he meet with [name] from Educational Support Services to learn about a possibility of arranging a tutor when required."

September 17, 1999 - "[The claimant] called to let me know that he is experiencing some difficulties in his academic upgrading program, specifically with his reading skills and Math. He also indicated that he would like to drop his science course from the Adult Grade 10 program.

[The Math Instructor] suggested that we postpone making a decision regarding the extent of tutorial assistance until the next test and the upcoming assessment of Mr. [the claimant's] academic status. It was agreed that we would discuss Mr. [the claimant's] status towards the end of this month.

We agreed that arrangements should be made to help him with his spelling and math skills and that the extent of tutorial assistance would be determined within the next couple of weeks. Mr. [RRCC Counselor] confirmed that RRCC would provide Mr. [the claimant] with a tutor, if required."

October 5, 1999 - "Mr. [RRCC Counselor] and the Grade 10 Instructor advised me that Mr. [the claimant] was experiencing difficulties with his reading comprehension and with his spelling skills.

I discussed with [Math Instructor] and [RRCC Counselor] a possibility of providing [the claimant] with tutorial assistance. However, [Math Instructor] indicated that [the claimant] is provided with educational support in the classroom and that, at this time, he does not require tutorial assistance. I was assured that RRCC would provide Mr. [the claimant] with a tutor if it were required.

Subsequently, I met with [the claimant] to discuss his current situation. [The claimant] advised me of his reading difficulties and requested that I extend his VR plan so that he could improve his weaker academic areas and complete his regular courses on time. I indicated that my priority would be to provide him with the necessary academic support to help him overcome his academic difficulties."

October 13, 1999 - "I discussed with [name], Supervisor, the claimant's status, his academic difficulties and his request for an amendment of his vocational rehabilitation plan. Following a review of the FIR[financial implications report], we determined that extending the time frame of the VR plan would significantly increase the costs and as a result the plan would no longer meet the criteria under the preventative vocational rehabilitation policy.

With respect to his academic efforts, he reiterated that he is working very hard to complete the Adult Grade 10 program and that his difficulties with reading comprehension hinder his ability to keep up with other students."

November 8, 1999 - "I contacted [name], RRCC Counselor, regarding Mr. [the claimant's] academic status.

Mr. [RRCC Counselor] indicated that Mr. [the claimant] is making steady progress in his Grade 10 program and that he is gradually gaining confidence in his academic abilities. Mr. [RRCC Counselor] stated that although [the claimant] is behind in his courses, he is slowly closing the gap. If he continues to make steady progress, he has a good chance to complete the Grade 10 program on time. Consequently, he confirmed that [the claimant] does not require tutorial assistance at this time."

November 22, 1999 - "Mr. [the claimant] reports that he continues to work very hard in his academic courses, has made very good progress in his writing skills and that he takes pride in his accomplishments. Although, he is becoming more efficient in his studies, and makes steady progress, he is uncertain whether he will be able to complete the Grade 10 program on time."

December 8, 1999 - "I contacted RRCC Counselor at RRCC to inquire about Mr. [the claimant's] academic progress and to determine whether he would require tutorial support to maximize his chances for a successful completion of the Adult Grade 10 program.

Consequently, Mr. [RRCC Counselor] recommended that we provide [the claimant] with tutorial support until the end of the academic program.

I advised Mr. [the claimant] of the WCB's approval for the associated costs with his parking and tutorial assistance and he thanked me for the support. Mr. [the claimant] confirmed his willingness to work diligently in his academic upgrading class to complete the program on time."

February 8, 2000 - "on February 7, 2000, I met with [the claimant] and [RRCC Counselor], at RRCC. The objective of this meeting was to update Mr. [the claimant's] current status.

Mr. [RRCC Counselor] advised me that Mr. [the claimant] did not complete the Grade 10 program. He explained that although Mr. [the claimant] passed his reading comprehension and spelling tests, he did not complete Algebra and would require additional period of 4 to 6 weeks to complete the Adult Grade 10 program.

Mr. [RRCC Counselor] indicated that should Mr. [the claimant] wish to continue with his academic upgrading, he would require additional time of 20 weeks to complete both the Grade 10 and Introduction to Business (Grade 11) programs. This would result in completing his academic upgrading on December 31, 2000.

With respect to his academic upgrading, I advised Mr. [the claimant] that we would not extend his academic upgrading program. I explained that given the academic support that was available to him, his demonstrated academic difficulties and increased costs associated with a new VR plan, I would not be in a position to support this vocational alternative."

As previously mentioned, the claimant's vocational rehabilitation plan was scheduled to take place over a two-year period. One year of educational upgrading and then a year of business administration followed by job placement. Almost at the outset of his educational upgrading, the evidence suggests that the claimant began to experience academic difficulties, for which he specifically requested remedial assistance. The vocational rehabilitation consultant advised the claimant on more than one occasion that he would be provided with necessary assistance if and when it was required. However, this assistance was not furnished soon enough to help the academically struggling claimant. There is nothing on the file to suggest that the claimant would have been incapable of achieving his necessary academic standing, either with or without remedial assistance. Quite the opposite, as the evidence clearly confirms that the claimant was capable of passing his grades.

The claimant testified at the hearing that he had repeatedly asked his vocational rehabilitation consultant for remedial help with his various courses, but the assistance, which was eventually provided, came too late in the process.

Q. Why did you say that you didn't need the support?

A. I don't understand where that came from. I told her all the way along that I was having trouble and needing help. Those aren't my words.

Q. So you are telling us that this is not the case, you never did make such an overture to her at all?

A. I asked her over and over again for help, that this wasn't working and I needed more and she just kept referring to me and saying, "It's not in the budget, we can't afford it, we've only got this amount of money. We had this amount of money; you've used up this much already. How do you expect me to go any further?" is her words to - is what she told me.

It all came down - no, it all came down to money. Every time we talked it always came down to, "We don't have the money, we can't afford it. You've got to do the best with what you have right now". That's what it boiled down to. It always boiled down to, "If you use this up now, we're not going to be able to do it later." She was the one that told me, "You can't go and - - if you use up all your tutorial assistance now, you're not going to have anything for later and we won't be able to take care of the situation."

Q. How far along in the program did you get before it was -

A. I was one week away from being finished and that's when they said, "We're cutting you, you're not going to make it." I had - they extended me for the week and then there was a two-week lull in between going from one to the next. I figured I had about a week, a week and a half left to go to get finished, because all I had left was my last math course. [Vocational Rehabilitation Consultant] called me in and said, We're cutting you down because you're not going to make it."

Q. So on receipt of this letter terminating your benefits, you just packed up your books and -

A. I had no choice.

Q. But if you had stayed for a week, I'm wondering, for one week, would you have -- if you had stayed on for one week, without the benefits, would you have --

A. I wasn't allowed to. They already cut off my parking pass; they cut off my access to the college.

Q. Basically, I hate to use the word "expelled", but is that --

A. Well, basically I was sent away. They gave me no option to --

Q. So you couldn't have continued even if the Board wasn't paying?

A. I couldn't afford to.

Q. Could you have continued on, or would you have continued on for that one week if it meant you were going to pass and go to the next level?

A. I could have if I - but, like I said, they cut off my parking pass, I had no - I couldn't park there, to drive in and park there. They cut me off for monies so there was no more monies coming in, so I had to go out and get a job.

Q. Just on that point, you feel that it's appropriate, the plan, as it was set out, once you got into it? Do you feel it was appropriate and still is appropriate?

A. Yes, it's appropriate, like I said, I had a little tougher time than some of the other guys in the class, where some other people had a tougher time than I did. I mean it's all individual and its not like I slacked off and didn't come to school and didn't spend time. To be quite honest with you I worked my butt off and I did it to the best of my ability and I fell short. I mean, the simple fact is I fell a week or so short and it's not - it wasn't for a lack of trying. And if I get the opportunity again, I'll work as hard as I can to get that goal.

According to a memorandum dated September 4th, 1998, the projected future claims costs for the claimant were calculated to be $245,221.57. The financial implications report (FIR) of April 16th, 1999 recorded the gross costs of the claimant's plan as being $132,521.96. It should be noted that these gross costs amount to only 54.04% of the projected future claims costs of $245,221.57.

Review Office in its decision of June 30th, 2000, however, referenced the claimant's "net present value of his future workers' compensation claims costs [as] $110,184.22 if he continued to do manual work." The decision goes on to state:

"The policy's administrative guidelines provide that the cost of a preventative vocational rehabilitation program should usually not exceed 50% of future claims costs. In this instance it was decided that this guideline would be exceeded. (The policy allows for costs of a preventative vocational rehabilitation program to equal a maximum of the future claims costs.) The claimant required an additional 20 weeks to complete his upgrading. The associated wage loss benefits would be approximately $8,864.60. Amending the preventative vocational rehabilitation plan to account for this would mean that it would no longer be cost effective." (Emphasis ours) According to our calculations, this additional cost of $8,864.60 would equate to 57.65% of the projected future claims costs of $245,221.57 or only a 3.61% increase over and above what had already been approved by the WCB.

After having thoroughly reviewed the wording employed by the WCB in its policy 43.10.60, we find that both the vocational rehabilitation department and Review Office, for some unexplained reason, used a discounted figure for the projected cost of future claims, when establishing the cost effectiveness of the claimant's plan. As we have already pointed out, when factoring in the additional cost for the 20 weeks that would have been necessary to complete the claimant's upgrading, the overall cost of the plan would not have exceeded 57.65% of the future claims costs. Although the original 54.04% figure would have been exceeded, the policy's administrative guidelines permit significant discretionary increases to the total plan costs where appropriate. "Plans with a projected cost/benefit ratio between 1 and 2, or with a projected cost of $50,000 or more can only be approved by the Director of Vocational Rehabilitation & Employment Services."

We find, in accordance with the evidence, that the WCB prematurely terminated the mutually agreed upon vocational rehabilitation plan solely on the basis the plan no longer remained cost effective. In our view, despite the marginal increase in the gross costs, the claimant's preventive vocational rehabilitation plan continued to be cost effective and therefore should be reinstated. Accordingly, the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 10th day of May, 2001