The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 11, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 12, 1999.

Issue

Whether the claimant is entitled to vocational rehabilitation assistance subsequent to July 12, 1998; and

Whether the claimant should be supported in a self-employment venture.

Decision

That the claimant is entitled to vocational rehabilitation assistance subsequent to July 12, 1998; and

That the claimant should be supported in a self-employment venture if it can be demonstrated to be cost effective and if it can be demonstrated the worker cannot take advantage of other conventional vocational rehabilitation programs.

Background

On April 25, 1996, the claimant was employed as a nurse at a correctional institute when a prison riot occurred. As a result of the incident, the claimant was diagnosed with “Adjustment Disorder with Anxiety” and “Major Depressive Disorder, Recurrent (in remission). The claim was accepted as a responsibility of the Workers Compensation Board (WCB) and benefits were paid between April and September of 1996. On August 28, 1996, the claimant commenced a return to work program but then experienced a recurrence in July 1997. Wage loss benefits were reinstated. The claimant’s benefits were paid by the WCB’s Vocational Rehabilitation Branch based upon her participation in a return to work program.

In a letter to all concerned dated January 26, 1998, the WCB clarified that the claimant had the ability to work alone in the community under the following conditions:

• refrain from working in a correctional setting.
• work with a familiar & stable client base.
• work with clients without a history of violence.
• access to a cell phone when out in the community.
• preferred work in residential areas as opposed to core areas.

The following is a brief summary outlining the claimant’s involvement with the WCB’s vocational rehabilitation branch:

• on January 28, 1998, a temporary employment placement was arranged by the employer for the claimant to work in a clerical capacity. The duties included preparing information packages for judges and lawyers as well as some reception work. The claimant, however, did not accept the job placement for various reasons, i.e. she felt the work was not in keeping with her skills; she did not trust the employer; she was concerned that she could come into contact with ex-inmates, gang members; she did not feel the WCB was acting in her best interest. After further discussion with WCB personnel and the claimant’s treating physicians, it was agreed that the claimant should not return to work with the employer.

• a March 3, 1998, memo by a Vocational Rehabilitation Consultant (VRC) documented that the claimant was giving some thought towards starting her own business in a catering related type operation. The VRC advised the claimant that given the parameters of the WCB’s vocational rehabilitation, she would not be supported her in such an endeavor.

• an April 27, 1998, VRC memo indicated that the claimant was offered a medical reader position through the driver’s licensing department. The claimant declined the position as she felt the placement did not utilize her skills and abilities. The claimant felt it was a dead-end job, that it was clerical in nature and did not respect her abilities. The claimant expressed a desire to work for the Medical Examiner’s Office.

• on May 6, 1998, a meeting was held at Emergency Measures Services to discuss potential projects that were available for the claimant. These included research on accident reduction, research on injury prevention, etc. On May 11, 1998, the claimant expressed her concerns that she would not be able to do these jobs as she did not consider herself to be suited for desk work. The claimant insisted that she be allowed to review the possibilities of working at the Medical Examiner’s Office. A subsequent memo, dated June 2, 1998, confirmed that there were no potential positions available for the claimant through the Medical Examiner’s Office.

• the claimant agreed to commence a graduated return to work with the Emergency Medical Services commencing June 1, 1998. In a memo, dated June 30, 1998, the VRC recorded that the claimant stopped work as she felt uncomfortable with the lack of structure, the fact it was office work and the lack of immediate feedback.

On July 9, 1998, the VRC wrote to the claimant and advised that the claimant had been offered employment consistent with her abilities and skills and that the employment respected her restrictions and allowed her an opportunity to recapture her pre-accident earnings. The VRC felt the claimant had exhausted the services and resources available to her. Vocational programming was dependent on the claimant’s willingness to participate and as the claimant chose to remove herself from this process, the VRC recommended that benefits and services end on July 12, 1998.

In a submission to Review Office, dated September 3, 1998, a union representative appealed the WCB’s decision to terminate the claimant’s benefits. In support, the union representative outlined several points:

• the claimant did not feel that she had any input into the job placements offered to her. The employer and the VRC were selecting jobs that they alone felt were suitable for her.

• the job offer at Emergency Medical Services had various limitations such as no job description, mostly sitting at a desk, not structured, no concrete commitment to train the claimant on computer skills, and the claimant was not sure the job permitted her to accumulate professional hours in order to maintain her nursing license.

• the position at the Law Courts was not suitable as the claimant could possibly encounter prison inmates.

• the position at the Department of Highways did not allow for the maintenance of the claimant’s nursing license and was not sufficiently challenging.

• the claimant wished to pursue a home based business and requested further rehabilitation assistance.

In a decision of October 9, 1998, the Review Office determined that the claimant was not entitled to vocational rehabilitation assistance subsequent to July 12, 1998 and that the claimant should not be supported in a self-employment venture. The Review Office considered that the claimant had been given ample opportunity to return to work with the accident employer in positions which reasonably respected her needs and provided her with earnings at least equal to her pre-accident level.

With regard to Board Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity, the Review Office was of the opinion that the claimant’s actions over a period of time were tantamount to a refusal to cooperate in the vocational rehabilitation process. As such, the decision to discontinue wage loss benefits and vocational rehabilitation services was confirmed.

With respect to the issue regarding the claimant’s self-employment venture, the Review Office took into consideration Board Policy 44.101, Financial Assistance for Self-Employment. The Review Office considered that even if it were determined the claimant was entitled to further vocational rehabilitation assistance, the WCB would not support a self-employment venture. “It is considered that the claimant was able to ‘take advantage of other conventional vocational rehabilitation programs’ and that self-employment would not be a cost effective alternative to same.”

On October 28, 1998, the union representative acting on behalf of the claimant appealed the Review Office’s decision to the Appeal Commission and an oral hearing was arranged for February 11, 1998. On February 10, 1999, a submission was received from the employer’s advocate which was considered by the Appeal Panel.

Following the hearing, the claimant provided the Appeal Panel with a facsimile copy of her application for a position with the Medical Examiner’s Office, dated May 11, 1998. This was forwarded to the Appeal Panel members and all interested parties on February 16, 1999.

Reasons

Chairperson MacNeil and Commissioner Frisken:

Section 27(20) of the Workers Compensation Act provides that the WCB has the discretion, where advisable, to provide academic, vocational training and rehabilitative assistance to a worker. According to WCB policy section 43.00, “The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests. The WCB will help the worker as much as possible to be as employable as she/he was before the accident. Once this is done and where necessary, the WCB will provide reasonable assistance to the worker so that she/he actually returns to work. However, services may not always continue until the worker actually returns to work.”

The WCB clearly determined in this case that the claimant was eligible for rehabilitation assistance. An initial vocational rehabilitation plan was outlined by a vocational rehabilitation consultant (VRC) in memorandum to file, dated January 15^th, 1998. However, a thorough review of the file failed to disclose an individualized written rehabilitation plan as prescribed by policy 43.00. “Where rehabilitation services are provided, the goals and responsibilities of the worker, the WCB, and the employer (where involved) will be identified through a written vocational rehabilitation plan. When developing the plan, the worker, the employer, and the WCB will pursue the established hierarchy of objectives.” The policy goes on to itemize what the actual written plan will include.

It would appear from the evidence that there was never any co-ordinated or concerted effort by the WCB and the employer to establish a viable vocational rehabilitation plan which took into consideration the claimant’s post-injury mental state, her education and training, her skills and aptitudes and her interests. In this regard, we paid particularly close attention to the comments of the treating psychiatrist which are contained in his letter to the claimant’s union representative, dated January 30^th, 1999. The psychiatrist recorded the following observations:

“In my opinion, the positions offered to [the claimant] by the WCB were not suitable or consistent with opinions and recommendations made by me in my letters to and conversations with the WCB. Nor do I feel that the positions offered were consistent with what I took to be the opinions and conclusions reached by the WCB in the persons of [the case manager, the VRC and the treating psychologist to whom the claimant had been referred by the WCB]. I was under the impression that they had arrived at an understanding of the fact that [the claimant] could only function productively in a setting where she would not become distracted, preoccupied and paralyzed by fears for her safety.

Perhaps I was naive to assume that the positions offered to her would be appropriate to her training, education, ability, previous work experience and areas of demonstrated competence. Accordingly I expected that the WCB would try to find her hands-on nursing positions while taking into consideration the psychological restrictions brought about by the traumatic experience initiated at the riot and further aggravated by the incidents that occurred when she returned to work in the prison and when she testified in court.

As I said in my previous correspondence to the WCB, [the claimant] needs to work in a setting in which she will not feel at risk for her safety. She is trained, qualified and experienced as a nurse. There is no reason for her to work in any capacity other than as a nurse. The psychological and emotional sequelae she is left with in no way precludes her continuing to work as a nurse. It does preclude her from working in a setting that would contribute to her feeling that she is in danger of physical harm. I do not feel that I have the expertise to comment on other types of work she might be suited to in the event that a nursing job was unavailable.”

We find that there had not been an adequate vocational rehabilitation plan developed for the claimant. In accordance with the weight of evidence and WCB policy, we further find that the claimant is entitled to vocational assistance subsequent to July 12^th, 1998. It is our recommendation that the WCB establish a plan for the claimant which reflects both the intent of policy 43.00 and satisfies the goals and objectives of vocational rehabilitation.

As the background notes indicate, the claimant has also appealed the WCB’s refusal to support her in a self-employment venture. The claimant feels that she is entitled to financial assistance given that “the rehabilitation process has failed to succeed.” WCB policy 44.101 deals with financial assistance for self-employment. It states, in part, as follows: “The board may provide financial assistance for self-employment or business opportunities where an injured worker cannot take advantage of other conventional vocational rehabilitation programs, or where self-employment is a preferred cost-effective measure to allow the injured worker to reach maximum earnings.”

Inasmuch as we have recommended that the WCB institute a suitable vocational rehabilitation plan, it is not possible at this point in time to determine whether the claimant’s self-employment venture would be more cost effective than the yet to be determined vocational rehabilitation plan. However, it might be an option worth exploring by the WCB when it comes to designing the claimant’s plan.

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 16th day of March, 1999

Commissioner's Dissent

Commissioner Finkel’s Dissent:

The claimant is seeking the continuation of vocational rehabilitation services which were terminated by the Workers Compensation Board (WCB) as of July 12, 1998.

The claimant is a nurse who was involved in a workplace incident in April 1996, and subsequently suffered from a compensable anxiety disorder that eventually precluded her from working in any kind of threatening environment. In late 1997, the WCB’s Vocational Rehabilitation branch became involved in trying to find alternate employment for the claimant with her pre-accident employer, firstly in her original department and subsequently in a number of other departments. On June 1, 1998, the claimant started a position in a new department and left the position as of June 30, 1998. After unsuccessful attempts by the WCB to set up meetings with the claimant that would keep her involved in the vocational rehabilitation process and after reminding the claimant of the consequences of her non-participation in terms of benefits entitlement, the WCB terminated the claimant’s benefits as of July 12, 1998.

From the evidence available in the file and the submissions made at the hearing, it is apparent that the issue of the claimant’s continued entitlement to vocational rehabilitation benefits focuses on the appropriateness of the employment solutions offered by the WCB and employer to the claimant, and on the appropriateness of the claimant’s responses to those solutions.

Subsection 27(20) of the Workers Compensation Act states that vocational rehabilitation services may be provided to a worker at the discretion of the WCB. The mechanisms under which these services will be provided are set out under WCB Policy 43.00 , Benefits Administration - Vocational Rehabilitation. The relevant portions of this policy are:

A. Policy

I. Goals and Objectives

1. The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.

2. The WCB will help the worker as much as possible to be as employable as she/he was before the accident….

3. Vocational rehabilitation strives to return workers to the salary level they were earning before the accident.

4. To meet these objectives, the following solutions (hierarchy of objectives adopted due to its reported success in the field of vocational rehabilitation) will be considered and pursued in the following sequence:

a. Return to the same work with the same employer.

b. Return to the same work (modified) with the same employer.

c. Return to different work with the same employer.

d. Return to similar work with a different employer.

e. Return to different work with a different employer.

f. Retraining and re-education.

g. Self-employment (Only in unique cases, subject to Policy 44.101, Financial Assistance for Self-Employment).

Section VII - Discontinuation of Vocational Rehabilitation Services sets out the circumstances under which vocational rehabilitation services will be declined or discontinued by the WCB. The relevant subsections are:

c. The worker chooses not to, or reports an inability to, reasonably participate in a suitable program of vocational rehabilitation.

d. The worker chooses not to, or reports an inability to, accept suitable employment for reasons not related to the compensable injury or condition.

e. The worker discontinues suitable employment for reasons not related to the compensable injury.

NOTE: Employment will be considered suitable where it is consistent with the worker’s physical, intellectual, vocational, and emotional capacities and represents a reasonable opportunity for maximum vocational rehabilitation.

Section II – Eligibility of the policy sets out the circumstances under which a worker will be entitled to vocational rehabilitation services. The claimant in this instance would certainly qualify for vocational rehabilitation services on the basis that “the worker is unable to perform the pre-injury employment (ie., a handicap has resulted from the compensable condition.)”

After consideration of all the evidence on file and presented at the hearing, and of the submissions made at the hearing, I find on a balance of probabilities that the WCB and the pre-accident employer were acting diligently and in line with WCB Vocational Rehabilitation policy in developing new job alternatives for the claimant, and that the claimant’s actions in removing herself from the last job offered and from the vocational rehabilitation process were not reasonable. Accordingly, I would find that the WCB acted appropriately in terminating vocational rehabilitation benefits as of July 12, 1998 and I would deny the claimant’s appeal. I have relied on the following factors in support of this conclusion.

The evidence indicates that both the pre-accident employer and the WCB demonstrated a high degree of commitment towards finding an appropriate alternate employment for the claimant. I note in particular:

The evidence also indicates that the job placement strategy utilized by the WCB for the claimant was consistent with the hierarchy of objectives set out in the WCB’s Vocational Rehabilitation policy:

• All positions offered to the claimant were clearly within the three top-ranked objectives, namely return to same work with the same employer, return to the same work (modified) with the same employer, and return to different work with the same employer. These positions included the original return to work at the original job site and subsequent positions of a temporary clerical position with the original department at another location, a medical reader’s position with another department, and a number of newly created job opportunities in a third department.
• The employer, through the written assurances of the employer, had clearly satisfied two of the major goals of vocational rehabilitation, namely, to ensure that the claimant was as employable as she was before the accident, and that she would return to the salary level she were earning before the accident.
• While the claimant indicated at the hearing her preference for “hands on” nursing positions with her employer, it should be noted that the WCB is not constrained to a narrow field of occupations or positions in the management of vocational rehabilitation. The WCB’s vocational rehabilitation policy does not require the WCB or the accident employer to provide a perfect job to match a perfect applicant. Rather, the standard or objective that it sets out is “sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.” There is, however, countering evidence that that the claimant was not interested in sustaining a nursing position, and indeed, was not interested in staying employed with the pre-accident employer:
  • The claimant expressed interest in two self-employed ventures that were not nursing-related during this period of vocational rehabilitation assistance, related to catering and a cookie bouquet business. Evidence on file indicates that the claimant was advised at that time of the low priority given by WCB to self-employment ventures, especially where more conventional vocational rehabilitation measures, through regular employment, were clearly available to the claimant and offered a far greater probability of success.
  • The claimant’s subsequent efforts from the time of termination of benefits to the date of the hearing were all directed at developing a new self-employment venture, with no effort dedicated to finding a regular job either with her employer or any other agency, for a nursing-related occupation.
• During her involvement with the WCB, the claimant did not develop or present any financial information to the WCB to warrant any serious discussion of the cost-effectiveness of her self-employment venture, as compared to the positions available to the claimant with her employer and the financial and job security assurances that were in place.

Dealing with the claimant’s participation in the vocational rehabilitation process and the reasonableness of her departure, I note the following:

• There is considerable evidence that the claimant would not and should not return to original job with modifications because of the long term restrictions that were accepted as appropriate by the WCB and the claimant’s psychiatrist. These restrictions include refraining from work in similar settings to that where her workplace incident took place, work with clients without a history of violence, a preference for work in residential settings, work with a familiar and stable client base, and access to a cellular telephone when out in the community.
• The evidence indicates there were only a limited number of nursing opportunities available with the employer, because of ongoing reorganization of heath services delivery which has dramatically reduced the number of nursing positions directly managed by the employer.
• Most remaining positions with the pre-accident employer were in settings which were outside her restrictions.
• The claimant’s evidence at the hearing that she was aware of the limited nursing jobs available to her with her employer for which she would be suitable, and that she has not explored or applied for any nursing positions with any other institution, community agency, clinic or medical practice.
• There is evidence to suggest that the claimant was not fully committed to the success of the vocational rehabilitation efforts, well prior to her departure from her last position. In particular, the claimant’s degree of interest in different jobs and the criteria that she would use were not consistent, and arguably it was impossible for the WCB and her employer to satisfy her job requirements or expectations. In this regard, I note the following evidence:
  • The claimant’s refusal to work at a new location with the original department in January 1998 led to her and her psychiatrist’s insistence that she never work in or for the original department. This was later replaced with her considerable interest in a position in that same department, which the employer noted had now become outside her restrictions.
  • The claimant asserts that close supervision was a major factor in her dissatisfaction with her last position, yet she remains disappointed that an earlier job was not provided even though a major factor for the employer’s refusal to offer the position was their inability to provide any supervision to the claimant.
  •  While the claimant professed to want a position that would ensure her MARN registration, there is evidence that the claimant was not inextricably tied to a nursing career in the early months of 1998. The claimant’s evidence at the hearing was that she had started to seriously examine a number of self-employment ventures on an ongoing basis, as early as February 1998, while in the midst of her vocational rehabilitation efforts. These included a catering business and a cookie bouquet business. Both these initiatives were discussed with Vocational Rehabilitation staff and declined because of the WCB’s policy to consider those ventures only under unique circumstances, and the job security and wage commitments already set in place by the pre-accident employer. Evidence as to claimant’s subsequent activities – her investment in her home-based business, and her inactivity in seeking out any nursing positions – suggest that the issue of requiring a hands-on nursing position was not a major factor in the claimant’s rejection of positions offered by the employer.

Based on my consideration of all the evidence presented in the file and at hearing, I find on a balance of probabilities that the claimant was offered positions within her restrictions and within the vocational rehabilitation framework set out in WCB policies, and that the claimant’s withdrawal from her last position and thus from the vocational rehabilitation process was not reasonable. I also find that the WCB’s decision to terminate vocational rehabilitation services at that time to be reasonable and appropriate. Accordingly, I would deny the claimant’s appeal and therefore not provide vocational rehabilitation assistance subsequent to July 12, 1998.

It should be noted that the claimant does have ongoing restrictions related to the compensable accident, and thus an ongoing potential entitlement to vocational rehabilitation services. It is the opinion of the minority that the claimant’s entitlement would become effective upon her full participation with the previous vocational rehabilitation plan’s objectives and goals.

A. Finkel, Appeal Commissioner