The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker in this case is seeking to have his vocational rehabilitation services extended an additional year after July 30, 2006.

The worker’s position:

The worker and his representative assert that the approved four year engineering program that was funded by the WCB was too short for him, by one year, and that additional funding should be provided to him to cover a fifth year. The worker offers several reasons:

• If he had stayed at the University of Manitoba to do his program, he would not have been able to finish the course in four years, because of Year 1 pre-requisite issues, and the number of courses he would have had to take. The worker referred to a five year “flow chart” for his engineering courses at the University of Manitoba, and statistical information suggesting that it takes the average Canadian engineering student 4.78 years to complete their program.
• He chose to include a “co-op” program with his course, which meant that he could not do summer courses. This added the extra year to the program. This significantly increased his employment opportunities and should be considered to be an imbedded part of the program.
• The University of Manitoba four year program was flawed because of the accreditation issues faced by that faculty, and he was justified to switch to a combined five year program at the University of Winnipeg and an American university.
• The worker acknowledged that he never actually entered the University of Manitoba program, but states that this four year program provided the conceptual framework that established his funding; he argues the WCB’s research undertaken in 2002 on that program was flawed, and that correct research would have provided him with five years at the University of Manitoba. He feels that the WCB, and not he, should be responsible for the additional costs that arose from that flawed research.

The worker’s position is thus that the IWRP developed for him in July 2002 was faulty and incomplete, and that in any event the WCB had committed to ensure that he would successfully complete an engineering degree and not to a specific four year program and its associated financial envelope.

Legislation:

Subsection 27(20) of The Workers Compensation Act (the Act) describes vocational rehabilitation benefits and services as a discretionary benefit available to workers who are still suffering the effects of a compensable injury.

WCB Policy 43.00 sets out the parameters under which vocational rehabilitation services will be provided to workers. Its goals and objectives are described, in part, as follows:

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 injury or illness. 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.

3. Vocational rehabilitation strives to return workers to the salary level they were earning before the injury or illness….

The policy also describes how IWRPs will be developed, factoring the worker’s vocational interests and capabilities with the financial costs associated with the plan. With respect to program costs, the policy includes a number of relevant provisions:

8. Every IWRP will include a Financial Implications Report. This accounting of costs will be attached to and forms a part of the plan. The Financial Implications Report will indicate all the costs associated with the plan and when it is expected that these costs will be experienced. The report will also project the amount of post-plan wage loss benefits.

9. The WCB will demonstrate that the IWRP is cost-effective. The test of cost-effectiveness takes into consideration the costs which are expected without the plan versus with the plan. As well, it is necessary to compare costs against available options.

13. If the plan requires revision due to unforeseen developments in the vocational rehabilitation process, amendment of the plan will be acknowledged by all involved parties. All the requirements for developing the initial plan apply to the amendment.

14. The WCB will be flexible in its management of the plan and reasonably respond to change. The WCB will monitor the plan to determine if the plan is progressing as anticipated. Where this is not the case, adjustments will be made in consultation with the worker and the service providers involved in the worker’s rehabilitation. The WCB will evaluate the plan at the attainment of identified outcomes in the plan.

15. The WCB and the worker may not be able to agree completely on the content of the plan. For example, the type of plan desired by the worker may be inconsistent with the loss of earning capacity for which the WCB is responsible. Under such circumstances, the WCB will expect the worker to participate in a different plan. At the same time, the worker can use the appeal process to pursue the plan which she or he wanted.

Analysis:

The WCB’s policy on vocational rehabilitation clearly contemplates that it can make reasonable expenditures for retraining an injured worker, for the purpose of restoring or recapturing some or all of a worker’s pre-accident earnings.

The issue in this case turns on what is reasonable. The worker’s position, as noted above, is that the WCB’s commitment does not end until he has his engineering degree, and that the extension of benefits he is seeking a) should have been contemplated at the beginning, and b) is reasonable in any event, given the academically challenging nature of this particular program. The WCB’s earlier adjudications provide an insight to their view of this matter – retraining programs are not open-ended, and the funding “envelope” must be cost-effective, as determined by the WCB’s primary goal of restoring a worker’s ability to earn his pre-accident wages. The WCB’s position has been that it was mutually understood by WCB and the worker that the engineering program exceeded the WCB’s normal targets (it was more expensive and lengthier than another Red River college program which was under consideration, and would ultimately pay the worker significantly more than his pre-accident wage), and that there was a funding ceiling that would not be exceeded, even if changes or extensions were required in order to complete the program.

The panel notes that vocational rehabilitation activities undertaken by the WCB and the worker followed the processes outlined in the policy. In this case, the worker was unable to return to his original job after his 2000 workplace injury, and the evidence on file indicates that once this became apparent, retraining/re-education options were considered which would have allowed the worker to recoup his pre-accident earnings. The worker’s evidence at the hearing was that he had suggested certain one year courses, which the WCB chose not to pursue, while the WCB also proposed a 30 month mechanical engineering technology program at a college. The information on file suggests that this program would have met the WCB’s goals of restoring the worker’s pre-accident earnings, on a cost-effective basis.

The evidence on file indicates that the worker considered the college program to be only a half measure, and that he initiated discussions with WCB staff about getting his engineering degree with the University of Manitoba instead. Memos throughout 2002 suggest both the worker and the WCB were fully aware that this was an expensive program, and was stretching the normal guidelines regarding cost-effectiveness.

WCB staff memos acknowledged that the worker was highly motivated and would be well-served by this program, and in June 2002, an IWRP was signed, providing funding for a four year degree program at the University of Manitoba’s Faculty of Engineering. By August 2002, the worker contacted the WCB, advising he wished to remap his program, to do a three year program at the University of Winnipeg, and two additional years at an American university. By December 2002, the worker’s relationship with WCB staff had deteriorated significantly; the worker’s evidence at the hearing is that from that point forward, he effectively gained the right to self-direct his education. He had very little contact with the WCB in 2003, 2004, and 2005, limited mostly to providing updates on courses taken and expenditures made. In January 2006, with the worker almost finished his fourth year at university, he first sought support from the WCB for his last (fifth) year of schooling.

The question in this case turns on the appropriate interpretation of the June 2002 IWRP, and of WCB’s vocational rehabilitation responsibilities to the worker. Did the IWRP provide a financial cap? Or was it flexible enough to allow for extensions of benefits? And if it was flexible, do the facts of this case warrant the panel granting such an extension? The panel has reviewed the actions and conduct of the WCB and the worker in 2002 and later, from the file and from evidence gained at the hearing, as well as the policy framework in which these activities took place.

After due consideration, the panel has concluded that the IWRP did in fact place very specific limits on the resources it would allocate to the worker for retraining, and that both the WCB and the worker had a mutual and clear understanding of those limits in 2002. The panel also concludes that while the WCB policy does encourage flexibility because of changed circumstances, the placement of overall financial limits is consistent with WCB policy, and that there is no basis, in this case, for the panel to change those limits. In reaching these conclusions, the panel notes the following:

• WCB policy is very clear that IWRPs must specifically address the financial implications of a worker’s retraining program. It will have due regard to the worker’s pre-accident income, the costs of the program, and projections of future income, as well as other factors. Any program must be cost-effective, and WCB has developed a number of analytical tools to assure consistency in this determination.

• WCB vocational rehabilitation policy is also clear that WCB’s retraining targets are to restore a worker to his pre-accident wage levels, if at all possible. Paragraph 15 makes it clear that WCB can limit (or decline) its involvement if a worker is seeking a retraining program that costs more (or will ultimately pay the worker more) than what WCB is obliged to do.

• In this case, a number of potential retraining initiatives were discussed between the worker and WCB, up to the end of 2001 that were ultimately unsuitable. The last, a pilot training program, was financially acceptable but did not meet the labour market criteria.

• Finally, in early 2002, the worker and WCB began to examine engineering programs. The WCB was prepared to offer a college mechanical engineering technology program that would have met the worker’s aptitudes as well as WCB’s cost-effectiveness criteria. It was a 30 month program that would have restored the worker to at least his pre-accident wage levels. As later evidenced by the worker’s successful completion of an engineering degree, the college program was also clearly within the worker’s vocational aptitudes and skills.

• The worker sought, instead, the support of WCB for him to obtain a university education as a mechanical engineer. The panel notes that almost immediately thereafter, discussions ensued regarding the increased time (four years versus 30 months) this program would take, as well as the increased financial costs that would be associated with the program, with a financial return to the worker that would be well above what his pre-accident earnings would be. A January 23, 2002 memo by the worker’s WCB vocational rehabilitation consultant summarizes discussions held with the worker on January 17, 2002:

“…I pointed out that based on my review and comparison of serval occupations (see FIR’s on file) that we would likely be targeting a college level retraining program. [The worker] had several questions regarding whether or not he could be sponsored through a university program in which he would pay for his final year. This is something we may consider, once we have moved closer to identifying an occupational goal. Particularly, we discussed the occupation of mechanical engineering technology versus mechanical engineering program through the University. [The worker] is adamant that he would prefer to pursue a University program as obviously his earning capacity would be that much greater as a university graduate and his future options would be that much greater. On the other hand, he understands that our obligation is only to his pre-accident amount.”

The panel notes that these earliest conversations already anticipate financial limits to WCB’s involvement, as well as the worker’s preparedness to self-fund any differences that might achieve a greater career objective.

• The WCB nonetheless chose to support the worker’s preference. A status update memo of April 30, 2002 notes “the primary rationale to support [the worker] in a program at the university level is that it will expedite his independence from the WCB system. [The worker] has had a contentious relationship with the WCB and it will be important for him to move outside of this system to gain a sense of independence.” The memo later reiterates WCB’s thoughts on the costs involved: “I emphasized that in moving to a plan that provides university training the WCB has gone well beyond meeting the minimal vocational rehabilitation goals. [The worker] acknowledged this …”

• By May 2002, non-Manitoba universities were being discussed, and a memo dated May 16, 2002 with the worker’s lawyer deals with the worker’s wish to take the program at a university outside of Manitoba, and the worker’s preparedness to cost share his attendance at that university. The WCB consultant indicated they would not prepare a plan that exceeded the costs of the plan that was being drafted at that time. The panel again notes that the worker anticipated that his preferred program might not be fully funded by the WCB.

• The IWRP signed by the worker and WCB in June 2002 covered a four year mechanical engineering program at the University of Manitoba plus a 12 week job search period, ending July 30, 2006. The panel notes that this plan carried the higher than usual financial costs that had been part of the discussions with the worker over the previous months, and concludes that this was likely due to the factors listed in the April 30, 2002 memo noted above.

• Even at the time that the IWRP was being signed, it is clear that alternative engineering programs with additional costs were potentially in play. A May 30, 2002 memo refers to a meeting the previous day, which records: “We discussed the IWRP. [The worker] is satisfied with the plan. He understands that these are the parameters and the guidelines upon which we will sponsor him to training through a university program based on the University of Manitoba Mechanical Engineering Program. Should [the worker] choose to pursue this degree in another location, he will be provided a maximum of what would have been allowable at the University of Manitoba… I also emphasized that we would not extend the program as the IWRP already is pushed to the maximum in terms of what can be provided from a voc rehab perspective.” The IWRP itself, which was signed by the worker, repeated this refrain: “You have expressed an interest in pursuing this program elsewhere. If you choose to pursue this program at another institution services will be provided within the parameters outlined in this vocational plan and to be confirmed through a letter of understanding.”

• In a letter to the WCB dated August 29, 2002, the worker stated, “I propose to have my plan continue through with the University of Winnipeg’s shared Engineering Program… I am well informed and willing to work within the parameters of my written plan relating to every aspect within this plan regarding duration and financing.”

• In the last few months of 2002, the WCB and worker were in contact regarding numbers of courses taken and the like, with those conversations summarized in memos. The panel notes that a number of these conversations refer again to the maximum amount of benefits that the worker would receive, and that requests for extensions would not be accepted.

• By December 2002, the worker’s relationship with WCB staff had deteriorated, and the worker was given latitude to self-direct his education. His contact with the WCB was significantly reduced, and dealt mostly with progress reports and financial matters assocated with the IWRP.

• From 2002 – 2005, the worker did in fact complete his 3 years at the University of Winnipeg, then transferred to an affiliated American university for his last two years, starting in September 2005. The panel notes that the worker was provided with vocational rehabilitation benefits at the rates and schedule set out in the IWRP, notwithstanding the increased costs associated with continuing an education out of the country. The worker was very much self-directed in his management of his retraining and presumably picking up any additional expenses out of his own pocket, and by his own evidence at the hearing, did not address issues of extensions of the IWRP or his increased costs during his fourth year, at any time prior to January 2006.

• The panel finds that worker’s conduct through those years was totally consistent with his letter of August 29, 2002 in which he agreed to abide by the parameters of his IWRP with respect to both duration and financing. The panel further finds that the worker was not 100% reliant on WCB funding of his retraining, and had on several occasions indicated that he was prepared to contribute financially beyond what WCB was prepared to cover. The panel also finds that the worker was aware in 2002 that his changed program was five years, and thus one year longer than the IWRP he had signed that year.

The panel notes that while the WCB policy contemplates that IWRPs can be amended where there are unforeseen circumstances, we find that those provisions do not apply in this particular case. The policy states that these changes must be reasonable, and “all the requirements for developing the initial plan apply to the amendment.” This brings into play, again, the cost-effectiveness of the original IWRP.