Decision #166/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 15, 2004, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to preventive vocational rehabilitation services beyond January 15, 2002.

Decision

That the worker is not entitled to preventive vocational rehabilitation services beyond January 15, 2002.

Decision: Unanimous

Background

During the course of his employment in the construction field on June 15, 1999, the worker injured his back. Initial medical information showed that the worker was diagnosed with a severe musculoskeletal lumbosacral back strain and that he had pre-existing degenerative disc disease. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On February 28, 2000, it was determined by the WCB's Preventive Vocational Rehabilitation (PVR) committee that the worker's case met the criteria under the WCB's Preventive Vocational Rehabilitation policy. On March 13, 2000, an "Individualized Written Rehabilitation Plan" (IWRP) was developed and signed by the claimant whereby the goal of the plan was to pursue a career in drafting.

In a memo to file dated December 3, 2001, a vocational rehabilitation consultant (VRC) documented that the training program had failed and that the worker was pulled from the program. The VRC noted that the worker had been offered tutoring service on two occasions but that he did not avail himself to the services. The VRC further commented that she became aware of a call centre training program that was being put on by another training institute. The VRC noted that she discussed the program with the claimant and that he seemed eager to start. The worker's IWRP was amended on December 19, 2001. On December 3, 2001, the claimant commenced the training program at the call centre.

Subsequent records showed that the claimant was absent from the training program on six occasions during a 20 day/session period. The claimant informed the WCB on January 10, 2002 that he was sick with the flu and that it developed into bronchial pneumonia.

On January 9, 2002, the worker was informed that his benefits were being discontinued immediately based on the following rationale:
"…the [training institute] does not feel that you can continue to participate in the program due to falling so far behind. As you have not made an attempt to ensure that you do not fall behind and therefore, able to graduate from the program, it is my decision that you have failed to mitigate your losses by participating in a suitable vocational rehabilitation program."
In a submission to Review Office dated May 16, 2002, a worker advisor, acting on behalf of the worker, appealed the WCB's decision of January 9, 2002. The worker advisor submitted that while the worker was unable to attend classes due to illness (which was supported by medical certificates), it was not appropriate to discontinue benefits immediately and that his benefits should be reinstated retroactively to January 9, 2002.

On September 30, 2002, a Review Officer spoke with the worker by phone to obtain details of what had transpired since his wage loss benefits ended in January 2002.

On October 4, 2002, the Review Office determined that the worker was entitled to one additional week of wage loss benefits up until January 15, 2002 inclusive based on policy 43.10.60, Preventive Vocational Rehabilitation. Review Office also determined that the worker was not entitled to preventive vocational rehabilitation assistance beyond January 15, 2002 due to the fact that the WCB's costs on the worker's PVR plan had exceeded the policy dictated limit. In July 2004, the worker disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

The issue before us was whether the worker is entitled to preventive vocational rehabilitation services beyond January 15, 2002. For the worker's appeal to be successful we must find that the vocational rehabilitation services already provided to the worker were inappropriate. We were not able to make this finding.

Legislation and Policy

Preventive vocational rehabilitation services are provided pursuant to subsection 27(20) of The Workers Compensation Act (the "Act") and WCB Policy 43.10.60, Preventive Vocational Rehabilitation.

Subsection 27(20) of the Act provides:

Measures for rehabilitation
27(20) To aid in getting injured workers back to work and to assist in reducing or removing any handicap resulting from their injuries, the board may take such measures and make such expenditures from the accident fund as it deems necessary or expedient.

Preventive Vocational Rehabilitation is considered discretionary. It is provided to workers in the very limited situations set out in WCB Policy 43.10.60. To be eligible for preventive vocational rehabilitation, a worker must meet the criteria set out in Paragraph 1 of the Policy, specifically:

1. A worker may be provided preventive vocational rehabilitation services or benefits where all the following criteria are met:
  • 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.
In this case it was determined that the worker met the criteria and his claim was approved for PVR. The worker received preventive vocational rehabilitation services from March 13, 2000 to January 15, 2002. The original termination date for the rehabilitation plan was May 23, 2002. His benefits were terminated before he had completed retraining.

Evidence at the Hearing

At the hearing the worker advised that he had little input into the development of the rehabilitation plan and the IWRP. The worker acknowledged that he signed the IWRP but said he was told he would be cut-off if he did not sign. He stated that he was forced to sign the IWRP.

With respect to the proposed goal of drafting technician, he stated that he did not think this was a reasonable goal given the significant upgrading that he required for entrance to the drafting program. He acknowledged telling WCB staff that he would like to stay in the construction field but that he did not suggest the drafting program.

The worker indicated that he was not aware of the financial guidelines established for preventive rehabilitation services or the amount budgeted for his rehabilitation plan.

The worker was critical of the amendment to the IWRP which resulted in him being pulled from the drafting program and being enrolled in a call centre training program. He disputed the suggestion that he did not successfully complete the program due to factors that he made no effort to mitigate. He believes that he should have been permitted to complete the drafting program.

He also disagreed with the decision to terminate his benefits. He denied that he had removed himself from the rehabilitation plan when it was changed to call center training. He advised that he was ill during much of this time.

The worker indicated that a more appropriate rehabilitation plan would have been for him to obtain his grade 12 equivalent standing.

Analysis

We were not able to find that the worker's plan was inappropriate. We find, on a balance of probabilities, that the rehabilitation plan and related services were reasonable and appropriate in the circumstances and consistent with the applicable WCB Policy.

We found the worker's evidence somewhat contradictory in several respects:
  • Although the worker stated that he objected to the plan, we note that he signed the IWRP.
  • As well, the worker stated that he told the WCB about his objection to the plan, but we could not find any reference in the file to his objection or disagreement with the plan, until near the end of the plan.
  • While he expressed concern about his ability to learn the drafting program, the worker advised that he had a personal copy of the drafting program and that since the rehabilitation plan was terminated, he had taught himself much of the drafting program. He advised that he has designed sunroom additions and a cottage using the program, all of which have been approved by municipal authorities.
We find that the rehabilitation plan was appropriate and that the worker is not entitled to further preventive vocational rehabilitation benefits or services. We consider the rehabilitation plan to have been appropriate given the worker's desire to work in an occupation in the construction field. The rehabilitation plan included upgrading assistance to permit the worker to qualify for the drafting program. We note that extra tutoring was made available to the worker but that he chose not to use these services. We accept the worker's evidence that since the rehabilitation plan was terminated, he has taught himself much of the drafting program and that he has successfully used the drafting program to design several projects which have met municipal building requirements.

We also note that under WCB Policy 43.10.60 that one of the criteria which must be met is that:
  • 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;
The worker confirmed that after the rehabilitation plan was terminated and his benefits ended on January 15, 2002 he found employment in his previous occupation and has since been employed regularly, on a seasonal basis, in this occupation. He has not suffered further physical injury while performing his previous occupation and has not suffered a loss of earnings due to his susceptibility associated with his prior workplace injuries. It appears he does not meet the above noted criteria.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of December, 2004

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