The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 23, 2003, at the claimant's request. The claimant was appealing several decisions that were made by the Compensation for Victims of Crime Program (CVCP) which determined that the claimant was not entitled to reimbursement of the costs associated with the purchase of a computer or a drawing tablet. The Panel discussed this case on several occasions with the last one being September 8, 2003.

Issue

Whether or not the applicant is entitled to reimbursement of the costs associated with the purchase of a computer; and

Whether or not the applicant is entitled to reimbursement for the costs associated with the purchase of a drawing tablet.

Decision

That the applicant is not entitled to reimbursement of the costs associated with the purchase of a computer; and

That the applicant is not entitled to reimbursement for the costs associated with the purchase of a drawing tablet.

Decision: Unanimous

Background

The claimant (applicant) was the victim of a stabbing incident that took place on June 1995. The CVCP [formerly the Criminal Injuries Compensation Board] accepted the claim and various types of benefits and services were issued to the claimant.

On May 7, 2001, the claimant prepared and presented a proposal to CVCP pertaining to a Multimedia Design & Communication course which was offered through the Applied Multimedia Training Centre. Following review of his proposal, the CVCP decided to sponsor the claimant into the training course. On April 12, 2002, the claimant signed a vocational rehabilitation agreement which outlined the conditions of the plan along with certain guidelines that he was expected to follow while enrolled in the course. The claimant was also provided with the services of an independent Vocational Rehabilitation Consultant (VRC) who was to act as the contact person between the training school and the CVCP in the event that the claimant had any concerns with the course of if he needed any school supplies, etc.

During a telephone conversation with a CVCP case manager on May 30, 2002, the claimant indicated that he required a Mac computer for his training course. The claimant's request was relayed to the independent VRC who then contacted the training center to determine whether or not the claimant needed this equipment. In a faxed report to CVCP dated June 6, 2002, the VRC stated the following:

"Taking into consideration the availability of the required computer and software at the school, the time frames the school lab is open to students and the fact that Mr. [the claimant] attends school in the afternoon only, leaving his mornings free to attend the lab, I am unable to recommend a purchase of the above listed equipment."

In a letter dated June 14, 2002, the CVC case manager advised the claimant that his request for a computer was denied based on the VRC's recommendations. The claimant was advised that he could appeal the decision under section 59(3) of The Victims' Bill of Rights ("the Bill").

In a letter dated July 8, 2002, the claimant appealed the decision to deny his request for the computer and the appeal was forwarded to the program's director for reconsideration. The claimant noted in his appeal that the desks and chairs at school were inappropriate for someone of his size and with his type of injury. He was extremely uncomfortable and in pain whenever he had to sit at his computer station for long periods of time. The claimant felt he would be more comfortable at home and would be able to work at his own pace. The claimant indicated that 32% of people in the graphic design industry worked at home and that the majority of work in Winnipeg was freelance work. He stated that working for a company in Winnipeg was possible but it was low paying and usually not full time. The claimant noted that the school director supported his request for a computer and would explain to the CVC program how the industry worked and why a Mac computer was essential in the business.

On October 4, 2002, the CVCP director upheld the decision to deny the claimant' request to purchase a computer based on the following rationale:

• the claimant signed a document on April 12, 2002 agreeing to the terms and conditions outlined in his vocational plan. The agreement did not include the costs to purchase a new computer.
  
  
• the vocational plan was developed based on research provided in the claimant's proposal. The research indicated that employment opportunities were average to good and salary ranges varied dependent upon the nature of the employment. Research also showed that the majority of work was full time and that 68% of workers were employed by a variety of different agencies.

In a letter dated October 29, 2002, the claimant requested CVCP to purchase him a drawing tablet. The claimant noted that he was told by his instructor during class lectures on May 29 and July 8 that experience in using a drawing tablet was required in getting a job. The claimant made reference to his proposal in which he asked for additional money to pay for things such as books, supplies and/or any other unexpected items. The claimant said that a drawing tablet was one of those extra costs.

In a faxed report to CVCP dated November 6, 2002, the VRC indicated that she spoke with the facility director who stated that a drawing tablet was not required for the program as it was only used for 3D animation, which was not in the Multi Media Design & Communication program.

On November 18, 2002, the claimant disagreed with the decision to deny his request for a drawing tablet, pointing out that he did not say it was needed for the program but that it was a required job skill. The appeal was then forwarded to the CVCP's director for reconsideration.

In a decision dated December 10, 2002, the program's director upheld the decision to deny the claimant's request to purchase a drawing tablet based on the following rationale:

• according to the Applied Multimedia program, a drawing tablet was not a requirement for the training program;
  
  
• the vocational plan signed by the claimant on April 12, 2002 did not include the costs to purchase a drawing tablet.
  
  
• the budget that the claimant submitted with his proposal included $1000.00 for books and supplies. Five hundred dollars ($500.00) was a portion of the fees charged by the school for supplies provided by them. This left $500.00 for additional items. As $698.14 had already been paid out (including the recent purchase of a CD burner), this exceeded the budget by $198.14.

On January 23, 2003, a non-oral file review took place at the Appeal Commission based on appeal submissions by the claimant with respect to his requests for a computer and drawing tablet. Following discussion of the case, the Appeal Panel requested further information from the VRC prior to discussing the case further. On January 29, 2003, the VRC was asked to provide the following information:

• to perform a labour market survey within the City of Winnipeg and surrounding areas with respect to multimedia design. The Panel was interested in knowing whether or not the employment opportunities for this position had changed from what was demonstrated in the claimant's original vocational rehabilitation plan and what the current employment opportunities were for a multi-media designer.
  
  
• whether or not the claimant's current computer equipment was sufficient for a freelance multimedia designer; and
  
  
• whether or not a drawing tablet was considered standard equipment for a freelance multimedia designer.

A response to the above enquiries were later received from the CVCP's director dated February 3, 2003.

On February 21, 2003, the Panel met briefly to discuss the information that was obtained from the CVCP's manager and decided that further information was required prior to discussing the case further. Specifically, the VRC was asked to provide the following information:

• when a student graduates from the Multimedia Design and Communication program, what are the kinds of employment opportunities they are achieving? Are they finding more full time versus part time employment? If work is available in the field of Multimedia Design are the graduating students finding available work on a freelance basis or are they finding permanent employment. Were they finding employment in other related or non-related fields and if so, which fields?
  
  
• comments as to whether or not the VCR agreed with the information that was submitted by the CVCP's manager dated February 3, 2003.

On March 11, 12 and 25, 2003, the VRC responded to the Appeal Panel's enquiries of February 21, 2003. On March 26, 2003, the claimant was provided with all of the information that was received by the Appeal Panel and was asked to provide comments.

On May 1st and May 29, 2003, the Panel considered all of the file information along with a submission by the claimant dated April 7, 2003. Prior to rendering a decision with respect to the issues under appeal, the Appeal Panel requested the following information from the VRC:

1. Exact details as to what was discussed at the January 28, 2003 meeting which was outlined in the claimant's submission of April 7, 2003;
   
   
2. Clarification as to where the former employment specialist obtained the 43% figure which showed that 43% of graduates were gaining employment (this was noted in the claimant's April 7th submission);
   
   
3. Statistics as to how many graduates from the spring 2003 class had found employment and whether or not it is employment that is related to their Multimedia Design and Communication course;
   
   
4. If any graduates are not employed with an employer, are they finding freelance work; and
   
   
5. Confirmation from the training institution that the claimant had passed the required courses necessary for graduation.

On July 11, 2003, the VRC responded to the Panel's inquiries and the information was forwarded to the claimant for comment. On September 8, 2003, the Panel met again to discuss the case and to consider a final submission by the claimant dated September 1, 2003.

Reasons

Issue 1:

The claimant signed a contract with the CVCP on April 12, 2002. This contract outlined the terms of CVCP's sponsorship of the claimant at the Applied Multimedia Training Centre. According to the terms of the contract the claimant was registered with the centre in a Multimedia Design and Communications course from April 15, 2002 to March 28, 2003. The agreement by CVCP to sponsor the claimant into this program came as a result of the claimant's own proposal as set forth in his letter to the Vocational Rehabilitation Consultant ("VRC") that the CVCP had previously assigned to him. This proposal set forth the claimant's desire to enter the program, outlined the costs of the program and the chances for employment after graduation from the program. The proposal also indicated that upgrades to the claimant's home computer would be necessary. Based upon the above request from the claimant, the VRC met with the General Manager of the Applied Multimedia Training Centre and ascertained information about the program, the costs of the program and the employment potential after graduating from the program. It was based upon this information that the VRC recommended the program to CVCP and in turn CVCP prepared the contract referred to above to be signed by the claimant.

Among other clauses contained in the contract, the parties agreed that the claimant would be provided with three months of job search assistance following completion of the program from March 29, 2003 to June 29, 2003. At no time prior to this contract being signed was the request made by the claimant to have his costs reimbursed for the purchase of a computer. In fact, the vocational plan was developed based upon the research that had been presented by the claimant himself which was then later confirmed by the VRC. No information was presented to the effect that a new computer would be needed for the claimant to complete the course. The total amount for the course was quoted as being $10,650.00 and no other costs were quoted as being in addition to this amount.

Accordingly, the claimant and the CVCP entered into a contract on April 12, 2002 that did not include the purchase of a computer. We would also note that the claimant's home computer had already been upgraded to the program's specifications by the CVCP in April of 2002 and that the Applied Multimedia and Training Centre had advised that these upgrades were enough to allow the claimant to successfully participate in and complete the course which he eventually did.

The VRC in her notes dated November 6, 2002 did discuss the issue of computers with the program's General Manager. Assurances were made at that time to the VRC that the training lab was available to the claimant in the morning, evening and Saturdays to complete his assignments. The VRC reported that she had learned that the claimant had in fact made no use whatsoever of the lab between August 1, 2002 and that date even though he attended classes only in the afternoon. If a MAC G4 computer was truly necessary to complete this course, one must wonder how the claimant could have completed his assignments up to that point and how he eventually graduated from the course in March of 2003.

Having noted all of the above, this Panel is of the unanimous opinion that the purchase of a new computer was not required for the claimant to successfully complete his course. Is there an issue then regarding the need for a new computer to enable the claimant to either find employment or become self employed after the completion of this course? It appears that initially the claimant was asking the CVCP to purchase the computer to enable him to complete the course and then his request changed to needing the new computer for self employment purposes due to a lack of employment opportunities. A review of the initial contract between the claimant and the CVCP and the correspondence surrounding the development of that contract indicates that at no time was it ever a term or implied term of the contract that the CVCP would find the claimant employment. The contract did offer the claimant three months of job search assistance after the completion of the course. This is something that the claimant chose not to take advantage of. From the claimant's own evidence it appears that he has made very little effort to secure employment since graduation and has not sought the assistance of the CVCP in this regard. We are therefore, of the opinion that because the finding of employment was not part of the claimant's initial contract with the CVCP he is not entitled to costs associated with the purchase of a new computer. We would consider the issue relating to assistance for self-employment to be beyond the realm of this appeal.

Issue 2:

The claimant has also requested that the CVCP compensate him for the costs associated with the purchase of a drawing tablet. The claimant indicated that his multimedia instructor recommended to his students to purchase one and to learn how to use it as it was an important job skill to acquire.

The Panel has reviewed the initial contract between the claimant and CVCP regarding the multimedia course and have noted that the request for a drawing tablet was not part of the claimant's original proposal nor is it a term or implied term of the contract entered into. The VRC was clearly advised by the General Manager prior to the contract being entered into that the cost of the program was self-contained and no other equipment or purchases would be necessary.

We have also considered whether or not the drawing tablet was a purchase essential to the completion of the training program. Clearly this was not the case as the claimant successfully completed the course. In addition, we have taken into account in arriving at our decision the evidence that the VRC specifically called the Training Centre's Director to ask if such a drawing tablet was necessary for completion of the course. His response was that the drawing tablet was not necessary for the Multimedia Design and Communications program that the claimant was enrolled in. He did state that while the software might be beneficial for certain related jobs, it was not a prerequisite for the career opportunities specific to the program in question. This software would have been included on the Training Centre's curriculum if it was necessary.

For the above reasons, the Panel is of the unanimous opinion that the claimant is not entitled to reimbursement for the costs associated with the purchase of a drawing tablet.

Panel Members

K. Dunlop, Q.C., Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of October, 2003