Decision #54/00 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 22, 2000, at the request of the claimant. The Panel discussed this appeal on several occasions, the last one being May 10, 2000.
Issue
Whether or not the claimant is entitled to vocational rehabilitation benefits before the time his employment insurance benefits ended until his return to work.
Decision
That the claimant is not entitled to vocational rehabilitation benefits before the time his employment insurance benefits ended until his return to work.
Decision: Unanimous
Background
In November 1988, the claimant sustained a compensable right knee and lower back injury during the course of his employment as a pipefitter. In 1993, the claimant underwent surgery to his knee and has permanent compensable restrictions to avoid squatting, stair/ladder climbing, and prolonged walking/running. The claimant has been provided with alternate duties by his employer. He was subject to a company layoff between August 3, 1998 and May 3, 1999, but received employment insurance benefits as well as job security benefits up to April 2, 1999.
In March 1999 the claimant contacted his Vocational Rehabilitation Consultant (VRC) to advise that he would be exhausting his employment insurance and job security benefits as of April 2, 1999. In the opinion of the VRC, the claimant was faced with a permanent layoff and would be considered competitively disadvantaged and would require Vocational Rehabilitation Services.
The next memo on file was that of a vocational rehabilitation supervisor dated March 30, 1999. The vocational rehabilitation supervisor indicated that the claimant did not qualify for vocational rehabilitation assistance as the claimant had the right to receive employment insurance benefits at the time of his lay-off that existed prior to his compensable injury. In discussion with the employer, the supervisor verified that the claimant qualified for Job Security benefits as his lay-off was temporary, yet he was uncertain to what date these benefits were payable. The employer also verified that a recall of carmen was underway with the return to work date of April 12th. However, as the claimant did not have sufficient seniority, he would have to wait until the next recall of workers in May. “In essence, the reasons for this worker’s lay-off are non-compensable in nature.”
The claimant was notified by letter that he was not eligible for rehabilitation services as the lay off was not due to a compensable issue but rather to a seniority issue. On July 9, 1999, a union representative appealed this decision to Review Office.
On September 3, 1999, Review Office determined that the claimant was entitled to partial vocational rehabilitation benefits from the time his employment insurance benefits ended until his return to work.
Review Office indicated that the claimant returned to alternate work with the employer after deciding that his personal circumstances precluded his successful participation in a vocational rehabilitation program involving upgrading and institutional retraining. The claimant therefore came under the provisions of policy 43.20.20, Modified/Alternate Work Programs. Review Office interpreted the policy as allowing the WCB to provide assistance at various points in time to claimants who are involved in a modified /alternate work program. It considered, however, that any assistance provided was not to be simply a “parking lot” and that claimants must become actively involved in a vocational rehabilitation program. The anticipated absence from work must be of substantial duration in order for the claimant to be disadvantaged in comparison to co-workers. Review Office indicated that once it became apparent the claimant’s lay off would be long term, he should have been approached and offered the opportunity of participating in a vocational rehabilitation program.
Review Office was of the opinion that the claimant did nothing to mitigate his circumstances by seeking alternate employment or pursuing retraining during his layoff. Given this, the claimant should be provided with wage loss benefits during the period from the time his employment insurance benefits ended until his return to work less a deemed post accident earning capacity of minimum wage. It considered the claimant capable of obtaining employment paying at least that amount.
On September 17, 1999, the claimant’s union representative notified Review Office that the claimant had been actively looking for work during his layoff as this was a condition of receiving employment insurance benefits. As the claimant was clearly mitigating his circumstances, the union representative requested Review Office to reconsider its decision to reduce the benefits paid by the amount of the minimum wage deem.
On November 5, 1999, Review Office determined that the claimant was entitled to full vocational rehabilitation benefits from the time his employment insurance benefits ended until his return to work. Review Office stated there was no basis for reducing his vocational rehabilitation benefits because of a failure to mitigate his circumstances.
On December 15, 1999, the union representative appealed Review Office’s decision contending that the claimant should be compensated for the full extent of the losses he experienced due to being competitively disadvantaged.
On February 22, 2000, an Appeal Panel hearing was held. Following the hearing and discussion of the case, the Panel requested a copy of the employer’s collective agreement together with its employment insurance agreement dealing with layoffs and job security top-ups. On March 27, 2000, all parties were provided with pages 18 to 29 and pages 75 and 76 of the collective agreement, which the Panel considered relevant to the issue under appeal.
The Panel met further on April 6, 2000 to discuss the case. The Panel requested that the employer provide a copy of the agreement with employment insurance dealing with employees that were laid off and the top up of benefits. A response from the employer dated April 13, 2000, indicated there was no explicit agreement between the Canada Employment Insurance Commission and the employer with respect to employment security. On May 10, 2000, the Panel met to render its final decision.
Reasons
As the background notes indicate, the claimant was subject to a general layoff between August 3, 1998 and May 3, 1999. Throughout most of this layoff period, the claimant collected and received employment insurance benefits from Human Resources Canada as well as job security benefits from his employer. He brings this appeal arguing entitlement to full vocational rehabilitation benefits during the period in question. Review Office in a decision dated November 5th, 1999 determined that in accordance with WCB policy the claimant was only entitled to full vocational rehabilitation benefits from the time his employment insurance benefits ended until his return to work.
The applicable WCB policy in this case is 43.20.20, which deals with benefits administration - vocational rehabilitation and modified/alternate work programs. This policy reads in part as follows:
“Workers actively involved in a modified/alternate work program who are receiving wage loss benefits or would be receiving wage loss benefits if it were not for the program, and are not eligible for the pre-injury level of unemployment insurance due to the effects of the compensable injury, will preserve the previously established eligibility (ie., based on earning capacity) for further WCB benefits where the worker is considered to be at a competitive disadvantage (ie., in comparison to other similarly employed workers) by reason of:
a) Incomplete job training or a lack of acquired skills in terms of an ability to surmount residual impairment associated with the compensable injury; and
b) A placement is temporarily interrupted due to a lay-off, strike, company shut-down, economic conditions, etc.; or
c) A placement is permanently discounted due to a lay-off, strike, company shut-down, economic conditions, etc.
Under these circumstances, assessment will be undertaken in support of developing and implementing alternative rehabilitation actions.
The worker’s representative takes the position that policy 43.20.20 “is based on the principle of competitive disadvantage due to a disability and is not dependent on whether or not the claimant is in receipt of employment insurance benefits.” Accordingly, the claimant “should be entitled to wage loss benefits based on whatever wage loss he actually incurred during his entire period off work and not just during the final month after his employment insurance benefits expired.”
We do not agree with the claimant’s representative’s interpretation of policy 43.20.20. In our view, the application of this particular portion of the policy is dependent upon whether or not the worker is “eligible for the pre-injury level of unemployment insurance due to the effects of the compensable injury.” The evidence confirms that the worker was eligible for the pre-injury level of unemployment insurance. We find, therefore, that the claimant would not be entitled to vocational rehabilitation until his employment insurance benefits ended.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of May, 2000