Decision #38/05 - Type: Workers Compensation

Preamble

A non-oral file review was held on January 25, 2005, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to vocational rehabilitation assistance to help her recertify as an ambulance attendant.

Decision

That the worker is not entitled to vocational rehabilitation assistance to help her recertify as an ambulance attendant.

Decision: Unanimous

Background

During the course of her employment as an ambulance attendant on January 21, 1999, the worker fell on an icy parking lot and injured her right shoulder region and later began to have difficulties with a pre-existing neck condition. The Workers Compensation Board (WCB) accepted responsibility for the claim and benefits were paid to the worker which included vocational rehabilitation assistance.

Following a Medical Review Panel (MRP) that took place on June 5, 2003, the WCB wrote to the worker on July 23, 2003 stating the following:

"The panel provided the opinion that although your compensable injury enhanced your pre-existing neck condition, following a rehabilitation program, you would be capable of resuming your full duties as an ambulance attendant. There is no need for ongoing restrictions or increased risk as a result of the compensable injury, therefore wage loss entitlement would end following the reconditioning program.

Although I acknowledge that your license to be an ambulance attendant is expired, the WCB is not responsible for funding you to recertify to be an ambulance attendant.

Given the extended time you have been on WCB wage loss benefits, I have recommended your benefits be extended for a further 12 weeks, up to and including October 15/03, to allow for the rehabilitation program to take place and for you to look into options for work or financial arrangements…".

On July 23, 2003, a worker advisor, acting on the worker's behalf, disagreed with the WCB's decision of July 23, 2003. The worker advisor stated that the worker was led to believe by the WCB that it would cover the costs for her to recertify as an ambulance attendant because if it wasn't for her compensable injury, she would not have been in this situation in the first place. The worker advisor noted that the accident employer was willing to accept the worker back if she took a six month recertification program in Winnipeg due to the amount of time that she was out of service as an ambulance attendant. The worker advisor believed that the WCB's offer of a 12 week rehabilitation program was not enough time for the worker to complete the ambulance attendant course and that it was unfair of the WCB simply to walk away without providing the worker any assistance in returning her to her former profession. The worker advisor asked the WCB to consider subsection 60(1) and 60(2) of The Workers Compensation Act (the Act) as the basis to accept responsibility for this matter.

On October 31, 2003, Review Office confirmed that the WCB was not responsible for the costs associated with the worker's recertification as an ambulance attendant. Review Office noted that the worker no longer had physical restrictions and that she was considered capable of working as an ambulance attendant. Although it was unfortunate that the worker's license as an ambulance attendant had expired, Review Office was of the view that subsection 39(2)(a) did not extend to situations where a worker is considered to have recovered from the effects of his or her compensable injury and that there was no longer a direct relationship between the effects of the compensable medical condition on his or her loss of earning capacity. Review Office stated that subsection 39(2)(a) of the Act did not provide for payment of costs associated with other non compensable factors impacting on a worker's loss of earning capacity, i.e. changes in licensing requirements, professional standards or the impact of economic conditions on availability of employment. On November 9, 2004, the worker advisor appealed Review Office's decision of October 31, 2003 and a non-oral file review was arranged.

Reasons

Section 39(2) of the Act provides as follows:

Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.

The weight of evidence, in particular, the MRP's report of June 5, 2003, confirms that the worker no longer has any compensable physical restrictions and that she is capable of performing her full pre-accident duties as an ambulance attendant. Inasmuch as there is no loss of earning capacity, the discretionary entitlement to further rehabilitation does not exist and is not available under the provisions of the Act or WCB policy.

While we sympathize with the worker's plight that her license to work as an ambulance attendant expired, we are nevertheless bound by the Act and policies of the WCB.

We have no alternative other than to find that the worker is not entitled to vocational rehabilitation assistance to help her re-certify as an ambulance attendant. 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 3rd day of March, 2005

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