The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on June 18, 1999, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the claimant is entitled to vocational rehabilitation assistance.

Decision

That the claimant is not entitled to vocational rehabilitation assistance.

Background

In May 1970 the claimant sustained a compensable injury to his right knee when he slipped on some material while employed as a carpenter. Physical restrictions were later implemented to avoid excessive walking and squatting, as well as stair and ladder climbing. In 1979 the claimant started his own construction company and subcontracted work for a company owned by his brothers. The claimant later underwent a total knee replacement in 1997 and following a convalescence period, he returned to work performing a combination of carpentry and office duties.

On November 19, 1998, the claimant contacted a Workers Compensation Board (WCB) adjudicator indicating that his physician advised him that he could no longer perform the carpentry work associated with his job. The claimant indicated there was not enough office work to keep him occupied for a full day and therefore he wanted to be re-trained. The claimant indicated that he was already enrolled in a real estate course beginning November 22, 1998. Subsequent file documentation showed that the claimant was being paid $3,000 to $5,000 a month from the company.

In a letter dated November 16, 1998, the attending physician expressed his views that the claimant had made an excellent recovery from his knee replacement surgery but should be cautioned with activities involving his knee which could cause damage to his prosthesis. The physician could not see the claimant continuing his activities as a journeyman carpenter and was in support of the claimant seeking alternative training that would enable him to lead a life that involved light to medium physical activity involving his knee.

On February 23, 1999, a Vocational Rehabilitation Consultant (VRC) wrote to the claimant indicating that he was not entitled to vocational benefits or services. The VRC commented that vocational benefits were discretionary and are considered when a worker suffered a loss of earnings due to his compensable injury or was unable to return to their pre-injury occupation due to a workplace injury. In the worker's case, he had been employed for approximately 20 years in his own business performing sedentary work and had not suffered any loss of earnings. It was felt that the claimant could have continued to work for his company but chose instead to move into a new career area. As the claimant had voluntarily left his job he was not entitled to benefits.

The VRC also pointed out that it was evident that the claimant could not perform his pre-accident position and successfully mitigated this obstacle when he opened his own company and choose to perform estimating work as well as sedentary work in the office. The claimant successfully demonstrated his ability to be employed in an alternate occupation thereby eliminating the need for vocational intervention.

On March 30, 1999, the Review Office acknowledged receipt of an appeal from a worker advisor who requested reconsideration of the VRC's decision dated February 23, 1999. The worker advisor contended to Review Office that the claimant was eligible for vocational rehabilitation from December 1, 1998, to May 15, 1999, as he was unable to perform his former employment which required him to work 25% of his time as a carpenter.

On April 23, 1999, the Review Office determined that the claimant was not entitled to vocational rehabilitation assistance. In arriving at this decision, the Review Office stated, in part, the following:

"While Review Office can appreciate why the claimant chose to change careers, it does not consider that same is a basis to provide vocational rehabilitation assistance. The claimant had successfully rehabilitated himself. The purpose and goal of vocational rehabilitation had been achieved. The claimant chose to walk away from that situation. Given the particular circumstances, Review Office can find no basis to extend vocational rehabilitation assistance (the provision of which is discretionary under The Workers Compensation Act) to the claimant."

On May 4, 1999, the worker advisor appealed the Review Office's decision and a non-oral file review was held on June 18, 1999.

Reasons

The claimant has been self-employed since 1979 and has not suffered any loss of earnings up to November 1998 as a result of his injury. In November 1998, the claimant voluntarily quit his job. According to the provisions of the Act, rehabilitation benefits and services are discretionary on the part of the WCB. Inasmuch as the claimant intentionally left his position of employment in which there was no loss of earning capacity, we do not consider that he is entitled to vocational rehabilitation assistance. Therefore, the appeal is hereby dismissed.

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