Decision #34/06 - Type: Workers Compensation

Preamble

A file review was held on February 1, 2006, at the worker's request.

Issue

Whether or not the worker is entitled to additional vocational rehabilitation services.

Decision

The worker is not entitled to additional vocational rehabilitation services.

Decision: Unanimous

Background

On September 13, 1982, the worker sustained multiple injuries in a work related accident when he was struck in the back by a piece of loose rock. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid to the worker which included a permanent partial disability award. The worker currently has permanent restrictions associated with his back injury and is considered capable of light to moderate activities.

Following the accident the employer provided the worker with positions that were in keeping with his compensable restrictions. The worker was able to maintain his pre-accident earnings and accordingly the WCB was not paying wage loss benefits during that period. With the encouragement of the WCB the worker obtained a position in 1984 in the safety office and in 1985 he was placed in the first aid room. The worker then participated in an apprenticeship program through the accident employer and in 1988 he obtained a full time job position in the computer service department as a personal computer maintenance technician.

In 1998, the worker lost his job with the accident employer due to economic reasons. On March 5, 1998, the worker was advised by the WCB that he was not entitled to further wage loss benefits based on WCB policy 43.20.20.01, Modified/Alternate Work Programs.

The worker then obtained employment with another computer company as a computer technician and was later promoted to a service manager position. Due to restructuring within the company, the service manager position was eliminated. In August 2003, the worker was offered a service technician position but he declined the job as he felt he was unable to fulfill the job expectations due to his limited physical abilities. In August 2004 the worker again secured employment with a computer company until he was laid off in July 2005.

Following the termination of his employment in August 2003 the worker requested vocational rehabilitation services from the WCB. On August 4, 2004, his case manager denied the worker's request for vocational rehabilitation services, relying on Policy 43.20.20.01 and concluding that the worker had no loss related to his compensable injuries.

The worker appealed from that decision on August 29, 2005 and the case was considered by Review Office on October 20, 2005. Review Office relied upon Policy 43.00, and concluded that as the worker did not have a loss of earning capacity due to his compensable injury it was not cost effective to provide vocational rehabilitation services. Review Office noted that the worker possessed transferable skills that enabled him to secure employment as a computer technician. On November 4, 2005, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

The governing legislation in place at the time of the worker's injury, section 24 (16) of The Workers Compensation Act, Cap. W200, (the Act) allows the Board to provide an injured worker whose earning capacity in his previous occupation has been permanently impaired, "such vocational training as may be deemed advisable for the purpose of preparing the injured workman for another occupation to which he may seem adapted and which is likely to increase his future earning capacity."

In this case the worker was injured in 1982, but continued to work with his accident employer until 1998 in other capacities. While the worker declined to participate in a program of vocational rehabilitation through the Board, he did participate in an apprenticeship program with his employer such that in 1988 he obtained a full time position in the computer service department as a personal computer maintenance technician. As such, while not having formally participated in a vocational rehabilitation program he was nonetheless, with the encouragement of the Board, "prepared for another occupation which was likely to increase his future earning capacity", in accordance with section 24(16) of the Act. Indeed the skills which he acquired while in the employ of his pre-accident employer enabled the worker to secure employment in 1998 when his position was terminated due to economic reasons. He worked as a service manager until 2003 when the position was eliminated, and thereafter he again secured employment with another computer company from August 2004 to July 2005.

The issue for this panel to consider is whether vocational rehabilitation services ought to have been extended to the worker by the WCB. The decision to provide vocational training is a discretionary one, which is determined in accordance with Policy 43.00, Vocational Rehabilitation. This policy provides in part that vocational rehabilitation services will be declined or discontinued where:

(a) The worker completes a vocational rehabilitation plan and has achieved her/his maximum earning capacity;

(b )The worker does not have a loss of earning capacity and does not require, because of the compensable condition, assistance with activities of daily living, counseling services, or an allowance; …

(g) The worker has completed a plan which has resulted in a certain level of earning capacity and/or it is not cost effective to provide additional or any services.

Both the case manager and Review Office premised their denial of vocational rehabilitation benefits upon a determination that the worker does not have a loss of earning capacity due to his compensable injury. It was further determined by Review Office that it is not cost effective to provide ongoing vocational rehabilitation assistance to this worker, who has received the maximum compensation available to him. The decision of Review Office is consistent with the finding of this Commission issued June 25, 2002 that the worker's permanent partial impairment award together with the disability pension received by the worker from his employer resulted in the worker receiving the maximum compensation possible. It was noted by the Commission in 2002 that this worker's financial circumstances would undoubtedly be different had it not been for his unfortunate accident in 1982. However, no amount of vocational rehabilitation will trigger an entitlement to further wage loss benefits. Wage loss benefits are payable to a worker until the loss of earning capacity ends. While eligibility for vocational rehabilitation services is distinct from eligibility for wage loss benefits, vocational rehabilitation goals are generally based on "loss of earning capacity" principles.

We concur in the findings of Review Office that the worker has sustained no loss of earning capacity due to his compensable injuries. We find that the worker is capable of light to moderate activities. He demonstrated that he is able to work within the restrictions resulting from his compensable injuries. He acquired marketable skills in the field of computer services and had been gainfully employed in that capacity for an extended period of time. While he is currently unable to work as a computer technician, we find this is due, not to the permanent restrictions which resulted from his compensable injury, but rather to the economic conditions which led to his most recent lay off. With the skills that he has acquired he is capable of earning income as a computer technician and/or service manager and is not at a competitive disadvantage with others in the field.

We find, therefore, that the worker is not entitled to additional vocational rehabilitation services. The worker's appeal is denied.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dangerfield - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of March, 2006

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