The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 28, 2002, at the request of the claimant. The Panel discussed this appeal on January 28, 2002.

Issue

Whether or not the worker is entitled to vocational rehabilitation services and benefits for the period June 8, 2000 to December 6, 2000 inclusive; and

Whether or not the worker's permanent partial disability rating has been calculated correctly.

Decision

That the worker is not entitled to vocational rehabilitation services and benefits for the period June 8, 2000 to December 6, 2000 inclusive; and

That the worker's permanent partial disability rating has been calculated correctly.

Decision: Unanimous

Background

In 1991 the claimant sustained an injury to his lower back during his employment activities as a shingler's helper. The Workers Compensation Board (WCB) accepted the claim for compensation and wage loss benefits were paid accordingly. In 1994, the claimant's benefits were reinstated due to further back difficulties.

On May 8, 1997, a WCB impairment awards medical advisor assessed the claimant to determine whether or not he was entitled to a Permanent Partial Impairment (PPI) award. The examination revealed that the claimant had 30 degrees loss in range of motion in his spine. The sum of the ranges of motion of a non-injured spine was 240 degrees and the PPI rating for a spine ankylosed in a position of function was 30%. The PPI award was calculated to be 3.75% (30 degrees divided by 240 degrees x 30%) and was awarded to the claimant in a lump sum settlement.

In 1998, the claimant signed an individualized written rehabilitation plan with the vocational goal of becoming a mechanical engineering technologist. The duration of the plan was between February 2, 1998 to January 31, 2002 and some of the plan components consisted of academic upgrading and enrollment in a technology program at Red River Community College which the claimant commenced in 1999.

On March 17, 2000, a Vocational Rehabilitation Consultant III (VRC) wrote to the claimant to confirm that vocational rehabilitation benefits and services would discontinue on June 7, 2000. The letter stated, in part, "You were provided with academic upgrading, study skills, tutorial supports, tuition, books and supplies. Feedback from your instructors and tutors indicates that you did not pass your courses partly due to poor attendance and your decision to decline tutorial help offered." The letter went on to indicate that the claimant's failure to fully participate in the plan had resulted in a decision by the WCB to end the plan early. "Your vocational rehabilitation plan had an anticipated earning capacity that exceeds your pre-injury (indexed) average earnings, resulting in no wage loss due upon completion of the vocational plan. On this basis, wage loss benefits will be paid to you until June 7, 2000, inclusive and final."

In April 2000 a WCB medical advisor reviewed up-dated medical information on file at the request of primary adjudication as the claimant felt that his back condition had deteriorated. The medical advisor agreed that the claimant's PPI should be reassessed.

On July 27, 2000, the claimant was reassessed by a WCB impairment awards medical advisor. Based on examination findings, the claimant's PPI award had increased to 6% (1% cosmetic and 5% for loss of range of motion) and the claimant accepted a lump sum settlement of his award.

On November 20, 2000 the case was considered by Review Office as the claimant appealed the decisions made on his case to discontinue vocational rehabilitation assistance as of June 8, 2000 and the amount of his PPI award. Review Office rendered the following decisions in this regard:

That the claimant was entitled to further vocational rehabilitation assistance.

Review Office recognized that the claimant's failing courses represented a significant failure of him to mitigate the effects of his accident. Notwithstanding this, Review Office considered that it was not appropriate to respond by implementing a deemed earning capacity based on the claimant's earnings had he completed the program.

Under the provisions of policy 44.10.30.60, Review Office ruled that the claimant was entitled to further vocational rehabilitation assistance contingent upon his full and complete participation in the process. Provision of wage loss benefits would be on an ongoing forward basis and would not be reinstated until the claimant met with Rehabilitation & Compensation Services staff and agreed to the above terms. (Subsequent file records showed that the claimant's WCB benefits were reinstated as of December 7, 2000.)

That the claimant's permanent partial impairment rating was correct.

Review Office considered the claimant's recent impairment rating was appropriately established and accurately represented his current degree of impairment.

In October 2001, the claimant appealed the decisions reached by Review Office on November 24, 2000 and an oral hearing was convened.

Reasons

This case involves a worker who suffered an injury to his back in a 1991 workplace accident. In time, this injury would lead to his being awarded a Permanent Partial Impairment award.

The claimant was eventually enrolled in a series of Vocational Rehabilitation programs. The first was unsuccessful, as he was physically unable to perform all of the job tasks. The second involved enrollment at Red River College in an engineering technology course. It was the claimant's lack of participation in this program that led to the decision to terminate benefits that forms one of the issues in this appeal. The third commenced subsequent to the period under consideration in this appeal.

Issue 1 - Is the claimant entitled to services and benefits for the period June 8, 2000 to December 6, 2000?

At issue is whether or not the Vocational Rehabilitation program was correct in its decision to terminate the second plan in which the claimant had enrolled. The reason for the termination was that he had failed a number of the courses in his first term. It was the general opinion of the course instructors that he was quite capable of passing the exams, if only he would apply himself. It is a matter of record that he missed a number of classes, in some courses as much as one-half of the classes. It was also reported that he adopted a lackadaisical attitude towards many of the courses; he felt that he didn't need to apply himself, as he knew the subject matter already. In addition, on more than one occasion during this term, he refused tutorial assistance when offered.

Following the end of the first term and his course failures, without informing the board, he failed to return to classes. The board learned of this when informed by Red River College.

We note that, in spite of this lack of cooperation on the part of the claimant, the board did not cut him off immediately. Rather, he was provided transitional services - for almost three months - to help him find alternative employment.

We have concluded that the board was correct in coming to this decision to end the vocational rehabilitation plan.

A second part to this issue is when benefits should have been reinstated. In its decision, dated November 24, 2000, Review Office concluded that the claimant was entitled to further vocational rehabilitation services and that benefits would resume once the claimant had met with board staff and agreed to participate fully in any future plan.

The claimant argued that this amounted to a suspension of his benefits. He further argued that, since he did not learn of this suspension until late November 2000, he could not be blamed for not having contacted the board earlier. Therefore, he argued, it was not his fault he didn't apply for reinstatement earlier and should be paid benefits throughout the period.

With respect, we do not agree. The decision to end his vocational rehabilitation plan was clear-cut: the plan would end; he would be provided transitional benefits; then, benefits would end completely. This was not a suspension, pending his agreement to cooperate better.

We note that, other than his request for reconsideration by Review Office, he made little or no effort to contact the board during the period from his cut-off to his reinstatement.

Thus, we conclude that the weight of evidence supports the position that the claimant is not entitled to payment of benefits for the period June 8, 2000 to December 6, 2000, inclusive.

Issue 2 - Is the claimant's permanent partial disability rating calculated correctly?

We note that this has been the subject of at least three reconsiderations by Review Office, two on the initial award amount of 3.75% and the most recent on the amount of 6%.

We have reviewed the board policy in respect of such disability ratings. We have also reviewed the assessment done in respect of this claimant.

We have concluded that the assessment and calculations were done correctly.

Accordingly, the appeal is dismissed on both issues.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of March, 2002