Decision #38/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 11, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on February 11, 2002.

Issue

Whether or not the WCB should have discontinued the worker's vocational rehabilitation benefits and services.

Decision

The WCB should not have discontinued the worker's vocational rehabilitation benefits and services with respect to the payment of his 2nd term tuition only.

Decision: Unanimous

Background

The claimant injured his left hand in a work-related accident on May 5, 1999, when he caught his hand in an electric bending press. The claimant had his 5th finger amputated and underwent a flexor tenolysis on July 21, 2000. The Workers Compensation Board (WCB) accepted the claim and benefits were paid accordingly.

In a memo to file dated July 12, 2000, a Vocational Rehabilitation Consultant (VRC) documented that the claimant entered adult upgrading when he realized that he may not be able to return to his pre-accident employment. He noted that the claimant's marks in Biology, Chemistry, etc. were all in the 90 percent range and that he registered with the University of Manitoba for September 2000. The claimant's goal was to become a physiotherapist. Notwithstanding the claimant's admirable goal to help people, the VRC indicated that the WCB's mandate was to assist the claimant in returning him to work at his pre-accident level of $380.00 per week. The VRC indicated that it was premature to establish a vocational goal at this time due to the claimant's undergoing further surgeries and the possibility of a long recovery period. The claimant was advised that the WCB would sponsor one year of university and that the claimant's status would be reviewed at a later date.

On August 11, 2000, the VRC wrote to the claimant. The letter stated, in part, that the WCB was not in a position to consider providing sponsorship to pursue the goal in physiotherapy, which would require extensive university attendance. The WCB had concerns with respect to the claimant's physical ability to perform the duties required in the field. It was confirmed that Rehabilitation Services would cover the costs associated with upgrading and that it was prepared to cover the costs of his first year university program in Arts. The WCB was awaiting the results of aptitude skill and interest testing and that once available, a meeting would be arranged. "It is my understanding you will explore the options in the technical field and available diploma courses."

On November 17, 2000, a WCB Case Manager met with the claimant to go over the direction of his potential vocational rehabilitation plans. The claimant was advised that the WCB would not support his re-training to become a physiotherapist as it would neither be cost effective nor functionally appropriate for him. The claimant disagreed with the case manager's stating that he had been told by at least 3 physiotherapists that the claimant could perform the duties. The claimant indicated that no matter what the WCB decided, he was still going to work towards becoming a physiotherapist. The claimant was advised that an alternate vocational plan which would be more cost effective and appropriate, would be discussed with his VRC.

In a decision letter dated December 20, 2000, the claimant was advised that although he had been attending university, this was not the most cost-effective rehabilitation route to pursue. In accordance with WCB policy 43.00.18, which allowed for a change in direction on a file, the WCB would no longer be covering any of the costs associated with his course at the University of Manitoba. The claimant was expected to participate actively in the development of a vocational goal that would lead to job search.

On April 4, 2001, an appeal was received from a law student, acting on behalf of the claimant. Argument was advanced that the claimant should be entitled to sponsorship by the WCB with regard to tuition, books and supplies to attend university as outlined in the August 11, 2000 letter from the VRC.

On May 2, 2001, a WCB manager documented that the claimant registered for the first year program prior to July 2000 and was accepted July 10, 2000. The VRC did not meet with the claimant until July 11, 2000 at which time the pursuit of first year university was discussed and the VRC agreed to fund the first year. In the manager's opinion, this supported the contention that the claimant's plan was to pursue university and that he was not reliant on the WCB to provide funding.

The manager pointed out that the claimant had been advised in November 2000 that there were serious concerns with regard to the funding of his university program, given the return to work hierarchy, in which more cost-effective options should have been pursued. The accident employer was able to accommodate the claimant's restrictions and this was confirmed by the Rehabilitation Specialist. It was therefore determined that the original decision to discontinue funding for the claimant's second term at university along with disability payments would stand, given the available accommodation by the accident employer. On June 7, 2001, the decision was appealed to Review Office.

On September 21, 2001, Review Office determined that the claimant was not entitled to wage loss benefits beyond February 2, 2001 and that no further university course funding would be provided.

With respect to the issue concerning university course funding, Review Office referred to Sections 60(1) and Section 60(3) of The Workers Compensation Act (the Act) and WCB policy 43.00 entitled Vocational Rehabilitation in its decision. It was clear to Review Office that continuing a four year university degree was what the claimant wanted and planned to do. Being one third through the first year of a four year degree did not meet the intent of "b" in policy 43.00. Review Office noted that various parties were not in complete agreement the claimant would successfully complete the plan in view of the physical demands of a physiotherapist. It was clear that the employer did not agree that the plan should be continued. Review Office acknowledged that even though the VRC had committed to a program of vocational rehabilitation, it was neither expedient nor cost-effective to continue same. On November 14, 2001, the claimant appealed Review Office's decision and an oral hearing was held.

Reasons

As the background notes indicate, the claimant is disputing the WCB’s discontinuation of his vocational rehabilitation benefits and services. Specifically, the claimant contends that he had been afforded an undertaking by the WCB that he would be provided with sponsorship for one year of university studies.

Q. Now I just want to go back and get your account and understanding of what exactly you had anticipated receiving from the WCB following your conversations with Mr. [VRC].

A. Following my conversations with Mr. [VRC] I expected that the Workers Compensation Board would put me through one year of school, ending in April 2001, and that I would be exceptionally lucky to get anything else after that. I had no intention of pursuing any kind of benefits or sponsorship from the Workers Compensation Board following the first year of university.

With respect to this allegation, we note that there is on file a copy of a letter dated August 11th, 2000, which was sent to the claimant by his WCB VRC. The letter states in part as follows:

“Rehabilitation Services will cover the costs associated with your upgrading. In addition, considering the fact you will be undergoing further surgeries yet to be scheduled, we are prepared to cover the costs of your first year university program in Arts. This sponsorship is being provided given the fact you are currently not prepared to become involved in job search due to lack of transferable skills in addition to your physical limitations. Please be advised your restrictions are presently temporary. In the event the restrictions are removed, further rehabilitation services would no longer be warranted. I will pay the initial cost for the first term at the University of Manitoba, $1299.00 and reimburse you $270.00. The next installment is due January 19, 2000 (sic) and will be paid prior to that date.”

Section 60(4) of the Act directs that decisions of the WCB and Appeal Commission “shall always be given upon the real merits and justice of the case.” While we appreciate vocational rehabilitation benefits and services are discretionary, we nevertheless find in this particular case that the WCB should honour the commitment made to the claimant with respect to the payment of his second term tuition. Accordingly, the claimant is therefore to be reimbursed for the balance of his first year university tuition fees.

However, we want to make it perfectly clear that the claimant is not entitled to payment of further wage loss benefits beyond February 2nd, 2001. The evidence confirms that the claimant underwent additional surgery to his left hand on December 15th, 2000. We are of the view based on the weight of evidence that the claimant had, on a balance of probabilities, recovered sufficiently from this surgery by February 2001 that he was capable of performing modified employment duties.

On or about January 16th, 2001, the WCB conducted a work site visit with the accident employer to review the alternate duties that were available for the claimant. A rehabilitation specialist recorded the following in a memorandum to file:

“The tasks related to sorting and organizing work orders and the sedentary office job that was described at this meeting appears to be within Mr. [the claimant’s] current ability. It is available to him immediately although there are some administrative details still to be firmed up by plant management over the next 2 or 3 weeks. They were made aware that Mr. [the claimant] has had recent surgery related to his injury and may not be available for a couple of weeks yet.”

A few days after the work site visit, the WCB informed the claimant by letter that the accident employer was able to offer him a permanent position, which was within his functional capabilities. The claimant refused to accept this offer.

We find that the claimant is not entitled to wage loss benefits beyond February 2nd, 2001. By his refusing to take this job and deciding to pursue his university education, the claimant had voluntarily removed himself from the workforce. In so doing, he no longer experienced a loss of earning capacity. WCB policy 44.80.30.20 provides that “Deemed earning capacity will be used under the WCB’s broader policy on mitigation (Policy 44.10.30.60, Practices Delaying Worker’s Recovery) where: The worker voluntarily leaves the workforce by expressing that he/she is not interested in looking for any work. In this case, the deemed earning capacity will be the worker’s earning capacity at the time of leaving unless it is demonstrated that the worker is capable of, through rehabilitation, a higher earning capacity.”

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 28th day of March, 2002

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