The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 4, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to further vocational rehabilitation services; and

Whether or not the claimant's deemed post accident earning capacity should be $389.00 per week effective July 1, 2002.

Decision

That the claimant is entitled to further vocational rehabilitation services; and

That the claimant's deemed post accident earning capacity should not be $389.00 per week effective July 1, 2002.

Decision: Unanimous

Background

On June 17, 1999, the claimant sustained an injury to his lower back during the course of his employment as a paintless dent technician. The claim was accepted by the Workers Compensation Board (WCB) and the claimant was provided with various benefits and services.

On November 30, 2000 the claimant was informed by the WCB that his case had been reviewed by a WCB medical advisor and that physical restrictions were warranted for a 12 month period. As the accident employer had been unable to provide the claimant with employment which would respect these restrictions, a WCB vocational rehabilitation consultation was scheduled.

Subsequently, the claimant underwent vocational testing and was enrolled in a career planning workshop. In April 2001, the case was referred to the WCB's employment services branch as it was determined that the claimant's vocational direction was toward becoming an elementary school teacher.

On May 23, 2001, the claimant was advised that his pre-accident employer may have a position for him as a service advisor. The claimant advised the adjudicator that he did not want to get back into the automotive industry and that he was looking forward to going to school to become a teacher. The adjudicator advised the claimant that since the employer had work within his restrictions then it would be feasible financially for him to get back to work and that he was obligated to participate. If he did not do so, his benefits could be suspended. On June 11, 2001, the claimant began an in-house training program as a service consultant. On July 5, 2001, the claimant expressed his frustration with having to train for a position that he had no interest in doing.

In a memo to file dated September 10, 2001, a WCB case manager noted that the employer was not satisfied with the claimant's progress in the in-house training program or with the claimant's attitude towards this type of work. The employer further commented that it could not guarantee the claimant a job.

In a letter to the WCB dated October 29, 2001, the employer stated, in part, "Although we have a position open a couple of months ago, we felt his progress was not sufficient to allow us to provide him with permanent employment. We do not have a position open now and felt that (the claimant) may be better served by another employer." The employer also stated, "Mr. [the claimant] was afforded every opportunity to develop his skills and in our view could have been an excellent Service Consultant. It was very evident that he was not in agreement with us."

On November 21, 2001, the VRC noted that the claimant had acquired the appropriate skills needed to find employment as a service consultant. With respect to earning capacity, it was noted that the starting wage for NOC 1453 was $432 per week and that these wages would increase at an annual rate of 2.4% until he reached the average earnings of $518 per week.

The claimant signed an Individualized Written Rehabilitation Plan (IWRP) on December 3, 2001 wherein it specified that the claimant would be provided with work shops and job search assistance from December 3, 2001 to April 19, 2002. The VR plan was later extended to May 31, 2002.

In a memo to file dated May 16, 2002, a WCB employment specialist provided details regarding the claimant's job search activities. It was noted that the claimant had been offered and had accepted a position (on a casual basis) as a maintenance technician starting at $12.00 per hour. The claimant's IWRP was then extended to June 28, 2002 in order to determine the number of hours of work the claimant would be assigned.

On June 10, 2002, the claimant was advised by his case manager that his work restrictions were now considered permanent. "As these work restrictions are within the job duties of a service writer for which you have been trained for, there will be no change to your previously outlined plan."

On June 26, 2002, the claimant was advised by his case manager that his benefits would be reduced effective June 30, 2002, based on an established earning capacity for the position of service writer, even though he had chosen to work in an unrelated occupation. Thus, the claimant was considered capable of earning a weekly amount of $432.00 per week.

In a submission to Review Office dated June 13, 2002, a worker advisor advanced the following argument: "…we believe that given the fact that the service training failed to secure Mr. [the claimant] with a job as agreed upon, Mr. [the claimant] should be allowed to continue with the original Voc Rehab plan to secure employment under the more appropriate NOC 4142. We believe that Mr. [the claimant] is entitled to a new Vocational Rehabilitation Plan that will allow him to regain his pre-accident earning capacity in accordance with Board policy 43.00 and that he is due the full extent of his incurred wage losses."

In a decision dated October 11, 2002, the Review Office determined that the claimant's deemed post accident earning capacity should be $389.00 per week effective July 1, 2002 and that Rehabilitation and Compensation Services should revisit his entitlement to vocational rehabilitation assistance.

Review Office noted that the claimant always indicated that he was not interested in working as a service writer and that he did not have a strong automotive background. While the claimant did receive training, in the end he could not be considered an experienced service writer. Review Office noted that there was a degree of disagreement between the claimant and the employer/its representative on several issues, including the appropriateness of the training he received.

In addition to the above, Review Office felt that the claimant's deemed post accident earning capacity should not be that of a fully qualified service writer and that it should be decreased by a deviation factor of 10%. This reduced it to $389 per week effective July 1, 2002. Review Office also believed that the claimant was a good candidate for retraining and stated that it would be beneficial to all parties with a direct interest to provide the claimant with retraining to offset the loss of earning capacity for which he was currently being compensated.

In response to the Review Office's decision to revisit the claimant's entitlement to vocational rehabilitation assistance, a VRC made the following recommendations in a memo dated December 16, 2002: "Vocational Rehabilitation options were explored based on Mr. [the claimant's] previous preference of Teacher, I choose computerized drafting and continuing to pay partial wage loss benefits based on the Review Office ECA of $389 per week."

On December 17, 2002, the claimant was informed that based on his transferable skills, education and previous work history and WCB policy 43.00, the current IWRP plan was the most cost-effective and was in keeping with the WCB hierarchy of objectives. Therefore, the WCB would not be providing the claimant with any additional vocational rehabilitation services.

In a letter of January 29, 2003, the claimant's worker advisor felt that the case manager's decision of December 17, 2002 was not in compliance with Review Office's October 11, 2002 decision. On May 20, 2003, a sector services manager wrote to the worker advisor indicating that after re-visiting the VR status of this claim, it was found to be most cost effective for the WCB to continue to pay partial wage loss benefits until the claimant re-captured his pre-accident earnings or reached the age of 65, which ever came first. With respect to the claimant's interest in a plan of retraining, the manager commented that this was not necessarily a "reasonably required, cost-effective" vocational rehabilitation option as stated in the VR policy. He stated that "the option of retraining and re-education is one which is highly speculative in terms of its ultimate success, especially when the worker does not have a strong prior history of involvement with post-secondary education." On May 30, 2003, the worker advisor appealed to the Review Office.

On October 31, 2003, Review Office determined that the claimant was not entitled to further vocational rehabilitation services. Review Office noted that its previous decision of October 11, 2002 did not require the WCB to provide the claimant with further vocational rehabilitation services. It said that the claimant was a "good candidate" for retraining. Review Office stated that this comment was not intended to be construed as a commitment to do so. There were other considerations other than ability which go into making such decisions, one of them being whether it was cost effective to provide retraining. Review Office agreed with primary adjudication that it was not if the claimant's deem was $389.

Review Office indicated that it remained of the opinion that the claimant had an earning capacity as a service writer and that $389 was an accurate representation of his earning capacity. Therefore it followed that there was no basis for changing the decision not to provide the claimant with further vocational rehabilitation services. On November 20, 2003, the worker advisor disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

The establishment of a deemed earning capacity is secondary to the implementation of an appropriate vocational rehabilitation plan. WCB policy 44.80.30.20 dealing with deemed earning capacity states in part as follows: "The decision to use deemed earning capacity will be secondary to the more important consideration of developing and completing an effective vocational rehabilitation plan. Deemed earning capacity will generally be used as a last resort after all reasonable or available vocational rehabilitation/re-employment options have been exhausted." (Emphasis ours)

Throughout the history of this file, it was readily apparent that the claimant was highly motivated to obtain employment of any kind. Unfortunately, despite his enthusiasm, the claimant has been unable to secure consistent and sustainable employment. After a thorough review of the file, we find that all reasonable re-employment options had not been sufficiently canvassed prior to the initiation of a deemed earning capacity.

Having due regard for the claimant's serious attempts to mitigate his circumstances, we would remove the impressed deem in favour of the claimant's actual wage earnings throughout the period in question. This determination will by necessity result in the need for a re-calculation of the claimant's wage loss entitlement subsequent to July 1, 2002.

Based on the evidence on file as well as the evidence adduced at the hearing, we find that the claimant's individualized written rehabilitation plan (IWRP) was doomed to failure right from the very outset. Initially, the WCB and the claimant were involved in a mutually acceptable retraining program, which would have led to approximately 4 years of post secondary education resulting in the claimant's obtaining a teaching degree-Step "F" in the vocational rehabilitation hierarchy of objectives outlined in WCB policy 43.00. This option was based on the employment specialist's report of May 14th, 2001. However, this plan was interrupted at the last moment by way of an offer on the part of the employer to train the claimant as a service customer writer. The employer's representative revealed at the hearing that his company had never before established a return to work program for this position. In addition, it should be noted that the claimant's pre-accident earnings were $900.00 per week and completion of the employer's program would only have led to a starting wage of $432.00 per week.

It is clear from the evidence of both parties that the job as a service writer was of no interest to the claimant because he did not have a strong automotive background, but he acquiesced and agreed to the plan because of his loyalty to the employer. It was the employer representative's evidence that this was a very tough job and that some persons succeed at it while many others do not. He further stated that he was not surprised the claimant was unable to make a successful transition into this position.

For all of the foregoing reasons, we find that the IWRP was inappropriate and that the claimant came out of this program untrained and unsuited for the position of a customer service writer with either the pre-accident employer or any other employer. We adopt the reasoning and recommendations outlined by Review Office in its decision of October 11th, 2002 and find that the claimant is entitled to further vocational rehabilitation services. We note with considerable concern that the WCB's response to the above noted Review Office decision was a mere paper review of the plan without any consultation with the claimant.

As we previously mentioned, the claimant is a highly motivated individual who is committed to be retrained for a full time position. We also note that the claimant continues to have permanent restrictions, which preclude his returning to work to his pre-accident employment or to other jobs identified in that industry. Consequently, we highly and strongly recommend that the initial employment specialist's report of May 14th, 2001 be reinstituted inasmuch as this would afford the claimant with the opportunity to regain his pre-accident wages.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 27th day of April, 2004