The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on December 4, 1998, following receipt of an appeal by a worker advisor, acting on behalf of the claimant.

Issue

Whether the claimant is entitled to vocational rehabilitation assistance.

Decision

That the claimant is not entitled to vocational rehabilitation assistance.

Background

On September 1, 1990, the claimant sustained a contusion to the left thumb when he tripped on a hatch cover handle while employed as a miner. The claim was accepted by the Workers Compensation Board (WCB) and the claimant was awarded benefits which included an 11% Permanent Partial Impairment award.

Between 1992 and 1998, the claimant worked as an ore sampler with the accident employer until he was laid off due to a workforce reduction. In a memo to file dated August 28, 1998, a WCB Vocational Rehabilitation Consultant (VRC) documented the following information:

· the employer was laying off workers due to an economic downturn in the price of nickel and demand.

· the claimant was bumped out of his position as a sampler by someone with more seniority.

· since 1992 the claimant had been successfully working within this position without modifications to duties. This was an actual job with the pre-accident employer as well as other mining companies. The claimant bid on the sampler job in 1992 and secured it prior to his having restrictions assigned to him by the WCB.

· the employer provided documentation indicating that it could no longer accommodate the claimant. An internal job search was conducted and the employer was only able to offer the claimant heavier jobs that were clearly beyond his restrictions.

The VRC concluded his memo by stating that the claimant was not eligible for services or benefits within Vocational Rehabilitation after having reviewed the file and the modified/alternate return to work policy. The claimant was advised of this decision in a letter, dated August 31, 1998. The decision was appealed by a worker advisor on September 9, 1998.

Prior to rendering its decision, the Review Office documented an October 15, 1998, telephone conversation with the employer and the claimant.

On October 16, 1998, the Review Office determined that the claimant was not entitled to vocational rehabilitation assistance. The Review Office referred to WCB policy 43.20.20, Modified/Alternate Work Programs in reaching its decision. The Review Office stated in part, the following:

"The claimant had worked full time as a sampler for a number of years and, at the time he was laid off, would have been eligible for the maximum amount of employment insurance benefits. (In fact, he is currently enrolled in a Human Resources Canada retraining program.) It follows that the claimant is not eligible for vocational rehabilitation assistance.

In addition, Review Office does not consider that the claimant is a at a competitive disadvantage compared to other similarly employed individuals. He is fully capable of working as a sample. The fact such work is not available to him is due to economic conditions. The WCB cannot (sic) any responsibility for same."

On October 28, 1998, the worker advisor appealed the Review Office’s decision and requested a non-oral file review. On October 29, 1998, the worker advisor presented a further submission for the Appeal Panel’s consideration. A submission was also received from the claimant, dated November 15, 1998. On December 4, 1998, the Panel met to render its final decision.

Reasons

Chairperson MacNeil and Commissioner Finkel

The claimant advanced the argument that he was entitled to vocational rehabilitation assistance. The applicable section of the Workers Compensation Act (the Act) in effect at the time of the compensable injury was Section 27(15). The section is headed up as “Vocational training” and reads as follows:

"The board may provide for any injured worker, whose earning capacity in his previous occupation has been permanently impaired by the injury, such vocational training as may be deemed advisable for the purpose of preparing the injured worker for another occupation to which he may seem adapted and which is likely to increase his future earning capacity; and to that end the board may contract with an institution or institutions furnishing such vocational training, and may adopt rules and regulations for that purpose and for payment of the training."

It should be noted that the language used in this section is permissive in nature and not mandatory. Therefore, any entitlement to benefits pursuant to this section would strictly be discretionary on the part of the WCB.

There has been no evidence presented to establish the fact that the claimant has suffered a loss of earning capacity as a consequence of his compensable injury. On the contrary, the evidence on file clearly suggests otherwise. In this regard we attached considerable weight to the following medical evidence:

· August 2^nd, 1994, letter from the surgeon to the treating physician. “This patient was seen again on July 26, 1994 for follow-up. His left thumb MCP fusion is solid. He has very minimal problems only occasionally when he jars the hand or does very heavy work, he feels some pain. There is also some pain in the scar area on pressure from the baseball glove. Other than that he has basically fully recovered and he can do any activities he wants.”

· August 16^th, 1996, X-ray of left thumb. “Findings: Comparison is made with the last examination of 1994. In the interval since the last examination the metallic pins have been removed. There is complete fusion of the metacarpal phalangeal joint of thumb. No other significant abnormality is identified.”

· December 10^th, 1997, letter from the surgeon to the treating physician. “Thank you for asking me to see this patient who was seen on December 8, 1997. I last saw him on July 26, 1994. He has a new pain in his left thumb that has had a previous MCP fusion. When riding a mountain bike or skiing he has pain at the MCP of the ulnar side. On examination there is no swelling. The fusion is stable. There is a nodule on the ulnar side of the MCP which is painful. A neuroma pain. He has had two steroid injections which helped some for about three months. I advised him to start physiotherapy and to continue using his splint. At work he has no problems.”

We find, based on the weight of evidence, that the claimant is not entitled to vocational rehabilitation assistance. Accordingly, the appeal is hereby dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 19th day of January, 1999

Commissioner's Dissent

It is the opinion of the minority that the claimant’s loss of employment is directly due to the effects of the compensable injury. The Review Office is correct in stating that employment as a sampler is not available due to economic conditions. However, the reluctance to acknowledge the impact of the compensable injury and its effects upon the claimant’s rights under the collective agreement have not been given the consideration it deserves. The file documents that other workers with this same employer who do not have restrictions and have less seniority are employed in positions which are not available to this claimant solely due to the compensable restrictions. The “whole body” workers were able to bump to maintain employment and the sole reason the claimant cannot is due to his workplace injury and the resulting workplace restrictions.

The employer acknowledges this fact but unfortunately the WCB applied policy which does not apply in this case. I state this because the worker was not in a modified job, just a suitable one.

The claimant is competitively disadvantaged in maintaining employment due to his compensable injury. Therefore, he should be granted rehabilitative assistance as he requests and as the employer suggests.

R. Frisken, Appeal Commissioner