The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 23, 2004, at the request of an advocate, acting on the worker's behalf. The Panel discussed this appeal on the same day.

Issue

Whether or not the vocational rehabilitation plan of retraining the worker as a ward clerk was appropriate.

Decision

That the vocational rehabilitation plan of retraining the worker as a ward clerk was appropriate.

Decision: Unanimous

Background

On January 28, 1993, the worker injured his left wrist during the course of his employment as a porter. The worker was diagnosed with an acute ganglion as a result of the accident. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On April 29, 1998, the worker injured his right shoulder and upper arm during the course of his employment as a nursing assistant II. As a result of the accident, the worker was diagnosed with a rotator cuff tear. The claim was accepted by the WCB and the worker was eventually awarded an 8% permanent partial impairment award for his right shoulder condition. As it was also determined that the worker had permanent restrictions respecting his right shoulder condition, the WCB's vocational rehabilitation branch became involved in the case to assist the worker with finding suitable work.

In June 2000, the worker was assessed by a psychologist and it was shown that he suffered from Attention Deficit Hyperactivity Disorder (ADHD), a mathematics disorder and a disorder of written expression.

In January 2001, the WCB arranged for the worker to undergo educational upgrading. A vocational goal for the worker had not yet been identified.

In July 2001, the accident employer offered the worker a permanent ward clerk position once he met the educational requirements. On July 23, 2001, the worker advised his WCB case manager that he would not even consider the position as he did not want to work with doctors and nurses.

In a memo to file dated July 23, 2001, a Vocational Rehabilitation Consultant (VRC) noted that he had advised the worker that from the WCB's perspective, the ward clerk position fell within his physical restrictions/transferable skills given that he was a certified health care aid. On August 30, 2001, the WCB provided the worker with an outline of the courses he needed to attain the ward clerk position.

On October 15, 2002, the worker was advised that the WCB was suspending his benefits as of October 25, 2002, as it was felt that he had not fully cooperated in his vocational rehabilitation plan which was outlined in the Individualized Written Rehabilitation Plan (IWRP) dated February 6, 2002.

On March 19, 2004, the worker's advocate appealed the above decision to Review Office. The advocate referred to various medical reports on file from the worker's treating physicians and psychologist. Based on these reports, the advocate concluded that the worker was incapable of performing many of the responsibilities outlined in the ward clerk job description. He stated that the condition of ADHD alone would be a disqualifying factor since the need for constant attention and attention span regarding medical terms was an obvious requirement. The advocate referred to correspondence on file from the Academy of Learning which outlined the difficulties encountered by the worker while attempting to complete the course as was required.

On July 7, 2004, Review Office addressed several issues that were brought forward by both the worker and the worker's advocate. In particular, Review Office determined that the vocational rehabilitation plan of retraining as a ward clerk was appropriate. Review Office placed little weight on the worker's contention that the ward clerk position would not provide him with job satisfaction, partly because of policy 43.00, Vocational Rehabilitation. Review Office also pointed out that since the worker had not chosen an occupational goal for over a year, it was appropriate for the VRC to dismiss all other options when the ward clerk opportunity presented itself.

In addition to the above, Review Office was unwilling to accept that the diagnosis of ADHD precluded the worker from working as a ward clerk based on the opinions expressed by his treating psychologist. On August 26, 2004, the worker's advocate appealed Review Office's decision by stating that the vocational rehabilitation plan of retraining the worker as a ward clerk was inappropriate and was not within his work capabilities based on the medical opinions found on file. On November 23, 2004, an oral hearing took place at the Appeal Commission to consider the advocate's appeal.

Reasons

At the very outset, the worker objected to the ward clerk position as he considered that it would not provide him with a great deal of job satisfaction. However, the vocational rehabilitation plan to retrain the worker as a ward clerk was appropriate according to the pre-testing conducted by the treating psychologist. In addition, the proposed ward clerk position and pre-training were well within the worker’s medical restrictions with respect to his right shoulder and lower back. The treating psychologist was the first health care giver to diagnose the worker as having ADHD. At no time did the treating psychologist indicate that the training program or the ward clerk position would be inappropriate for a person with such a condition (ADHD).

Based on the medical evidence accumulated in the year 2000, we find that the worker’s continuing left wrist difficulties were not, on a balance of probabilities, significant enough to prevent the worker’s continuing with his IWRP.

At the commencement of the plan there were significant non-compensable factors at play which prevented the worker’s full and complete participation in his vocational rehabilitation program. In particular, he was enduring several non-compensable personal issues and as previously mentioned had a general disinterest in the actual position being offered i.e., ward clerk. We note the treating psychologist’s comments contained in a September 16, 2002 report dealing with the treatment of the worker’s depression and his ADHD. She stated as follows:

“During the therapy, therefore, in addition to helping him problem solve personal problems and set limits in relationships, both of which have prevented him from focusing on his educational upgrading, I have addressed such issues as how [the worker] can become better organized, prioritize the conflicting demands on him and generally become more motivated about completing his vocational rehabilitation.”

After having taken into consideration all of the evidence, we find based on the weight of that evidence that the vocational rehabilitation plan of retraining the worker as a ward clerk was appropriate. Accordingly, the worker’s appeal is hereby dismissed.

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 5th day of January, 2005