The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 18, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the WCB should cover the costs of a professional note taker for any of the worker's university courses.

Decision

That the WCB should cover the costs of a professional note taker for evening university courses.

Decision: Unanimous

Background

In October 1994, the worker sustained a traumatic brain injury during the course of his employment activities as an electrician. The claim was accepted by the Workers Compensation Board (WCB) and various types of benefits and services were paid to the worker which included vocational rehabilitation assistance.

On February 20, 2004, the WCB's Review Office considered an appeal submission from the worker which dealt with a decision that was reached by a WCB vocational rehabilitation consultant (VRC), which denied the worker's request to cover the costs of a professional note taker. Review Office agreed that a professional note taker would be more beneficial to the worker than a volunteer note taker, however, the file evidence did not support that having a professional note taker was a requirement. Review Office felt that the decision rendered by the VRC did not contradict any sections of The Workers Compensation Act (the Act) or policies adopted by the WCB's Board of Directors. On February 24, 2004, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

In addition to his oral evidence, the worker delivered a lengthy brief in support of his case, which was engaging and compelling to some degree. He testified that the university at which he was attending provided a disability service program. This plan afforded the worker the opportunity to avail himself of the services of a volunteer note taker for courses conducted during daytime sessions. We note that the worker made use of these services from time to time and that he attained above average grades. The worker further advised that he had been attempting to improve his personal note taking methods.

Notwithstanding the foregoing, we have, however, some concern with respect to the worker's evening courses. The worker testified that the majority of these classes were a minimum of three hours in length and that he found himself extremely fatigued by the end of the day.

It should be pointed out that the worker's evidence with respect to his own fatigue is consistent with the literature and medical evidence on file. That is, fatigue can be a debilitating factor for brain injured students in post secondary learning institutions. In addition to his fatigue level, the voluntary note takers were generally not available in the evening.

After having considered all of the pertinent evidence, we find that it would be appropriate for the WCB to cover the costs of a professional note taker for the worker's evening university courses only. Accordingly, the worker's appeal is partially allowed.

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