The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 8, 2003 at the claimant's request. The Panel discussed this appeal and made its decision on that date.

Issue

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

Decision

That the claimant is entitled to further vocational rehabilitation assistance.

Decision: Unanimous

Background

In 1993, the claimant filed an application for compensation benefits with respect to a right shoulder injury that occurred during the course of her work. The Workers Compensation Board (WCB) accepted responsibility for the claim and provided the claimant with various benefits and services.

Due to the effects of her injury, the claimant was unable to return to her pre-injury employment. She worked with her accident employer for a number of years but was laid off in April 1997. After a consideration of her circumstances, the WCB determined that she was entitled to vocational rehabilitation assistance and her benefits were accordingly reinstated.

In February 1998, the vocational rehabilitation branch of the WCB chose to sponsor the claimant in a 24 week Microsoft Certified Systems Engineer Course (the MCSC) . The assumptions underlying this decision are set out in WCB memos dated January 23 and January 29, 1998.

These memos suggest that: i) the position of network specialist was in high demand, and ii) there was a continuing demand for administrators of micro-computer networks who were "more experienced in setting up networks and trouble-shooting computer hardware and software applications."

The WCB was also in possession of a survey from a training institution offering the MCSC which suggested that 9 out of the 10 graduates of its program in September of 1997 had obtained employment in their field.

However, as the WCB Employment Specialist noted in her March 6, 1998 memo to file, "the computer industry is ever changing in new technology." Prior to and during the claimant's participation in the training program and work experience, there were warning signals that the labour market for this particular position was glutted and that the market for new graduates might be restricted to those who already had considerable expertise in the field.

These signals included: i) a January 29, 1998 memo to file with the notation that "more graduates are coming out of the MCSC certification"; b) a July 10, 1998 memo to file suggesting that "most of the students enrolled in the program (were) failing due to a lack of prior practical experience"; c) an Amendment to the Vocational Rehabilitation Plan dated November 25, 1999 which noted the need for an extension to the job search "due to the competition for positions. Also, the job market is presently unsteady because of the winding down of Y2K initiatives."

The claimant successfully completed her training on August 18, 1998. She finished third in her class of nine. Between September 1998 and February 2000, she was placed in two work experience programs and provided job search assistance. Unfortunately, the claimant was unable to find employment in her field.

On February 26, 2000, the claimant was deemed to have an established earning capacity of $396.16 per week based on NOC 1421 (Computer Operators). The deem was based in part upon the assumption set out in a February 3, 2000 memo that "[a] labour market does exist in this occupational area."

The claimant obtained work at a call centre in September 2000 and worked there until mid 2001 when she left due to the working conditions. She subsequently found employment in the retail sector as a return clerk but was laid off from her most recent position on or about June, 2003.

In a letter dated March 6, 2002, the claimant asked the WCB to provide her with additional vocational rehabilitation assistance in accordance with WCB Policy 43.00, Vocational Rehabilitation. She argued that her rehabilitation plan was flawed because "the information the plan was based on including labour market analysis, had substantially changed even before graduation."

The claimant observed that her skills and training made it difficult to find employment. She asked to be provided with "the minimum education standard for this field in order to become employable, or in a field where there are employment opportunities."

In a March 20, 2002 memo, a WCB Employment Specialist (ES) outlined the current labour market situation for NOC 1421 Computer Operators. He stated that the starting wage for a computer operator was $396 per week. With respect to the market, the ES suggested "chances of finding work in this occupation are rated "limited" as a result of large long-term employment losses and over the next five years, this outlook was not expected to change as employment losses are expected to continue."

The ES concluded that the increasing use of microcomputers and networks rather than mainframe computers would likely continue to have an unfavorable impact on demand.

On March 21, 2002, a WCB Case Manager rejected the claimant's request for additional vocational rehabilitation assistance. With regard to the Individualized Written Rehabilitation Plan or IWRP, the Case Manager argued that it was based upon an analysis of the personal circumstances of the claimant as well as the labour market. She noted that the claimant's assistance involved formal training supplemented by work experience and that it was extended twice to provide additional work experience and job search time.

The Case Manager conceded that the current labour market for computer operators was limited. However, it was her belief that the labour market was positive during the period the claimant's IWRP was developed and that the MCSC provided training which was appropriate for the field at that time. In her view, the WCB was unable to control labour market fluctuations or to offer additional services based on a change in the economy or a change in the standards or requirements for a profession.

On March 19, 2003, the claimant appealed the Case Manager's decision to Review Office. On June 20, 2003, Review Office confirmed that the claimant was not entitled to further vocational rehabilitation assistance.

In making its decision, Review Office set out its view that the MCSC did not make the claimant competitively employable. Review Office accepted the reality that only a very small percentage of graduates from the MCSC had obtained work related to their training. It also noted that the claimant's skills were out of date with the result that her training was of no value in the job market. In the view of Review Office, the requirements of Board Policy 44.80.30.20 had not been met and the decision to implement the deem of $396.16 per week could not be sustained.

However, Review Office felt that the claimant had a demonstrated earning capacity as a call centre operator or in the retail business. In the view of Review Office, there was no need to provide the claimant with further vocational rehabilitation assistance. Rehabilitation and Compensation Services was directed to implement a deem retroactive to February 26, 2000 using the most appropriate of the two classifications outlined above.

In July 2003, the claimant appealed Review Office's decision on the grounds that: i) the MCSC course did not result in any employment in the field; ii) only a small percentage of graduates ever found employment; and, iii) the only jobs found were not related to her vocational rehabilitation course.

The claimant's concerns were set out in greater detail in a letter dated March 19, 2003 which was attached to her Notice of Appeal. In it, she took issue with the labour market analysis upon which her original plan was based.

In her view, the job market evaluation was inaccurate "as the information gathered from the different agencies to prepare it was based on all different aspects of information technology, including the Y2K frenzy, not just network administration positions." She observed that employers were looking for and able to find employees with much more work experience than she had.

From the claimant's perspective, her concerns about the market were borne out by the comments of her instructors and the labour market experience of her class.

"One person out of the 9 in my class obtained employment in an IT department with the city in the fall of 1998. She also had 12 years previous experience in this area. The class one subject behind us had one person out of 15 find a job. In fact our primary instructor advised us midway thru the course that there were too many graduates for the number of jobs available in Winnipeg. Two of the instructors left before we had graduated and our primary instructor left shortly after grad."

The claimant noted that in April, 2000, the Director of Human Resources Development for Manitoba Information Technology Industries identified the networking job area as one in which there was an "oversupply".

An oral hearing was held on October 8, 2003. No one attended on behalf of the employer.

Reasons

The Panel's decision in this matter turns upon its consideration of the merits of the original vocational rehabilitation plan (the plan) coupled with an examination of the claimant's current circumstances and a consideration of the overarching objective of reducing the human and financial effects of a work-related accidents.

WCB Policy 43.00 relating to vocational rehabilitation indicates that "while discretionary, vocational rehabilitation should be consistently applied to all eligible workers." The Panel notes that development of the plan is to be conducted "after adequate assessment" (V.8) and to be based on a "realistic goal" (V.9). The policy also provides that "the WCB will be flexible in its management of the plan and reasonably respond to change (V.13)."

The Panel concurs with Review Office and finds on a balance of probabilities that the original and amended vocational rehabilitation plans for the claimant were inappropriate given the claimant's limited experience in the field and the rapidly deteriorating labour market in 1998 and 1999. This finding is based upon the panel's review of the entire record including the claimant's letter of March 19, 2003, the WCB memos on file and the oral submissions of the claimant.

On a balance of probabilities, the Panel endorses the following findings by Review Office: a) "despite assurances given to the WCB by the school, a very small percentage of graduates from the [MCSC] obtained work related to their training." b) "it is considered that someone whose only computer experience was obtained in the course would have significant difficulty in obtaining employment"; c) while at one time there may [have been] a high demand for individuals with the certification, the market was quickly flooded as many institutions offered it and the course was of short duration"; d) the rate of pay coupled with the requirement for less than six months of training suggests that employers "would expect graduates to have a considerably broader knowledge of computers than that provided by the course"; e) the claimant did not have that knowledge.

The panel notes that some of these realities should have been apparent prior to the development of the plan while others would have become apparent as the claimant progressed through her training and job experience. Given these conclusions, it cannot be accepted that the plan was developed after adequate assessment or based upon a reasonable goal. Nor could it be said that the plan as it was amended reasonably responded to the rapid deterioration in the labour market. In short, the plan as conceived and amended was not appropriate.

Like Review Office, the Panel takes the view, based upon a balance of probabilities, that the claimant's MCSC did not make her competitively employable and that the decision to implement a deem of $396.16 per week cannot be sustained.

The Panel notes Review Office has expressed the opinion that the claimant has a demonstrated earning capacity either as a call centre operator or in the retail business. It also observes that Review Office has directed a new deem be instituted based upon this demonstrated earning capacity. In the Panel's view, these new economic circumstances reinforce, rather than mitigate against, the desirability of exploring the appropriateness of a new vocational rehabilitation plan for the claimant. The current circumstances of the claimant may change the economics of future vocational rehabilitation.

The Panel observes that Part I .1 of WCB Policy 43.00 sets out an objective of helping "the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills aptitudes and, where possible, interests." Part IV.1 of the Policy states that "services should be reasonably required, cost-effective, and provide the potential for achieving vocational rehabilitation goals. Services may include assessment, employment related services along with re-education, vocational and academic training."

In the Panel's view, the new economic circumstances provide an appropriate occasion to explore the costs and benefits to the claimant and to the WCB of vocational rehabilitation services such as assessment, re-training and employment related services.

The Panel observes that its position is supported by Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity. Part 1.b of that policy provides that the decision to use deemed earning capacity will be secondary to the more important consideration of developing and completing an effective vocational rehabilitation plan.

In cases where there has been a change in earning capacity resulting in earnings that are lower than first expected, Part 6 of the policy empowers the WCB, to continue (i.e., where vocationally appropriate for the worker and cost effective for the WCB) full or partial wage loss benefits together with more vocational rehabilitation efforts.

Given its finding that the initial rehabilitation plan was inappropriate coupled with its recognition of the claimant's economic circumstances and the objective of reducing the human and financial effects of work related accidents, the Panel finds that the claimant is entitled to further vocational rehabilitation assistance. The WCB is requested to explore or re-assess a new vocational rehabilitation plan for the claimant taking into account her current economic circumstances.

Insofar as the wage loss consequences associated with this decision, we note that the Review Office has already directed the WCB to reassess the claimant's deemed earning capacity of $396.16 that was established in the original vocational rehabilitation plan. That issue, or the re-calculations made by the WCB, was not under appeal before us. As to the levels of future wage loss benefits, these will be conditional upon the outcome of the vocational rehabilitation process.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of December, 2003