The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 17, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on June 17, 1999.

Issue

Whether the claimant is entitled to vocational rehabilitation assistance beyond July 6, 1998, at this time.

Decision

That the claimant is entitled to retroactive vocational rehabilitation assistance beyond July 6, 1998.

Background

In June 1997, the claimant submitted an application for compensation benefits after he had developed chronic contact dermatitis to both hands while working with cutting oils while employed as a machinist. Permanent restrictions were later outlined to avoid direct contact with cutting fluids. On February 17, 1998, the claimant began receiving full wage loss benefits as the alternate duties provided by his accident employer were causing further aggravation to his dermatitis condition.

Subsequent information revealed that the accident employer was unable to accommodate the claimant with another alternate duty work program and that a Vocational Rehabilitation Consultant (VRC) was assigned to assist the claimant exploring alternate vocational options. On April 14, 1998, the accident employer was informed about a formal vocational rehabilitation plan that would be developed for the claimant.

Discussions later took place between the VRC, the accident employer and its advocate. The accident employer indicated a willingness to accommodate the claimant in alternate duties. In a June 3, 1998, fax, the accident employer outlined a number of job duties the claimant would be expected to perform on an as-needed basis. A work site analysis was performed by a WCB occupational therapist, who concluded that the claimant would be able to perform certain tasks as long as he wore gloves. Arrangements were then made for the claimant to be fitted with special impermeable gloves.

On July 3, 1998, the VRC contacted the claimant. It was agreed that he would attend a meeting on July 7, 1998, to discuss the return to work program offered by the accident employer. The claimant, however, did not attend the meeting as scheduled. His benefits were suspended effective July 7, 1998, due to non-participation. It was then learned that the claimant had been advised by his lawyer not to attend the meeting in light of the following comments expressed by the treating physician on July 6, 1998: "In my opinion the job offered of June 3/98 from [the employer] will cause [the claimant] to experience a relapse in his skin condition, is not consistent with the restrictions previously outlined by myself or to WCB specialist. Therefore I do not give medical clearance for this job."

On July 7, 1998, the employer's advocate indicated that the employer would "remain open to discussions with [the claimant] respecting his return to work, but this will only be done if initiated by [the claimant] and he demonstrates a sincere willingness to cooperate with the company and the WCB in making the return to work successful."

Legal counsel for the claimant appealed the WCB's decision to suspend the claimant's benefits effective July 6, 1998. On September 11, 1998, the Review Office determined that the claimant was not entitled to vocational rehabilitation assistance beyond July 6, 1998.

The Review Office relied on the WCB consultant in internal medicine's suggestion that the claimant attempt a return to work wearing protective gloves once his hand lesions had subsided. The claimant's general practitioner indicated that doing so would likely cause a recurrence of the claimant's dermatitis. The claimant chose not to return to work after his dermatitis had cleared. Review Office considered that it was not a given the claimant's dermatitis would return if he returned to work in a machine shop and wore protective gloves. To assume this would be the case and to embark on an extensive vocational rehabilitation plan would be to ignore the WCB's fiduciary responsibility to the accident fund. The Review Office concluded that the VRC's decision to suspend the claimant's benefits following his refusal to return to work was correct and justified. Legal counsel for the claimant subsequently appealed the Review Office's decision and an oral hearing was scheduled for June 17, 1999.

Reasons

The employer sent a registered letter, dated April 6th, 1998, to the claimant acknowledging that it had been advised by the WCB the claimant would not be returning to work with the company. The employer also wished the claimant success in his rehabilitation process and in his finding another position quickly. A WCB vocational rehabilitation consultant informed the employer on April 14th, 1998, of the following decision: "Further to our telephone conversation, this brief letter is intended to confirm my understanding that your company is not able to accommodate [the claimant] in a position of employment consistent with his/her current physical restrictions. Given this, I will now be assisting [the claimant] toward alternative vocational options, the details of which will be incorporated in a formal Vocational Rehabilitation Plan." It was at this point that the employer took issue with the ongoing responsibility for vocational rehabilitation benefits and services.

Over the course of the next 2 1/2 months the vocational rehabilitation consultant (VRC) met with the claimant to discuss various vocational options, as well as modified duties recently offered by the employer. According to a memorandum to file, dated June 3rd, 1998, the VRC had the following conversation with the President of the accident employer and his compensation advocate:

"We discussed the board's role in returning claimants to work and the heirachy (sic) involved. It was pointed out to [the President] it was in the board's, claimant's and employer's best interests to return the claimant to his accident employer, if at all possible. [The President] is willing to offer [the claimant] modified duties, once he has discussed this possibility with his General Manager. [The President] expects [the claimant] to sign a return-to-work contract stipulating certain expectations and responsibilities on both [the claimant's] and the company's behalf.

I explained to [the President], I had found [the claimant] very motivated and interest/aptitude testing had shown [the claimant] had many interests and skills. The claimant has been very active researching different occupations and has been sending out resumes.

It was agreed [the President] would discuss the possibility of modified duties with his General Manager and draw up a list of tasks which might be offered to [the claimant]. He also said [the claimant] could send out resumes to other companies, while working with his pre-accident employer, if he wished to do so. [The President] wished to have [the claimant] back to work by the middle of June but I pointed out the information from Adjudication and [the claimant's] doctor might take longer than two weeks.

I spoke to [the claimant] today and asked him if he had seen his doctor lately. [The claimant] said he will be seeing his doctor on June 12, 1998, and I asked [the claimant] to ask his doctor for a detailed report on the condition of his hands. As [the claimant] and I will be meeting on June 9. 1998, I will discuss the possibility of modified work with his employer at that time."

According to a memo, dated June 22nd, 1998, the WCB's Senior Director Claims Services advised the VRC that should the claimant lose his employment, then the file would be reviewed and a decision would be made whether the WCB would provide the claimant with rehab assistance. A meeting involving all of the parties was scheduled for July 7th, 1998, to discuss the proposed return to work offered by the accident employer. The claimant's lawyer notified the WCB by fax transmission on July 6th, 1998, that the claimant would not be attending this meeting. The lawyer enclosed in his communication a copy of the treating physician's letter wherein the doctor expressed his opinion that the proposed job duties would cause a relapse in the claimant's skin condition. As a result of the claimant's non-attendance at the meeting, the VRC decided, "To suspend wage loss benefits until [the claimant] indicates a willingness to co-operate with vocational rehabilitation services."

We find the preponderance of evidence confirms that the claimant is entitled to the reinstatement of vocational rehabilitation benefits and services on a retroactive basis. The claimant chose not to return to the work as had been arranged on the advice of his treating physician and his lawyer. In his covering letter, the lawyer requested the WCB to contact his office with its comments. On July 24th, 1998, the lawyer wrote the following letter to the WCB:

"Further to our facsimile dated July 6 1998 this is to confirm that we have yet to receive a response to our letter. We wish to confirm that we are somewhat dismayed by the fact that you did not respond to our letter but immediately the following day suspended WCB benefits to our client, Mr. [the claimant]. We have reviewed the matter with our client who has instructed our office to appeal your office's decision and in this regard kindly contact our office as to possible dates for reconsideration of the WCB's decision to suspend benefits."

In our view, the claimant was always ready, willing and able to co-operate with the WCB. Accordingly, the appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of August, 1999