The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") thatreturning to his pre-accident line of work would not be physically orfinancially successful.  A hearing washeld on April 7, 2015 to consider the matter.

Issue

Whether or not the worker should be supported in returningto his pre-accident trade.

Decision

That the worker should not be supported in returning to hispre-accident trade.

Decision: Unanimous

Background

On July 9, 2008, the worker suffered a crush injury to his left foot and ankle during the course of his employment as paving stone installer/supervisor. His claim for compensation was accepted and benefits and services were paid to the worker while he underwent treatment for his injuries which included surgical procedures in 2008 and 2011.

In a memo to file dated June 25, 2013, a WCB vocational rehabilitation consultant ("VRC") provided a summary of the claim file related to the worker's involvement with vocational rehabilitation services dating back to 2008. This included a vocational rehabilitation plan based on NOC 2231, Civil Engineering Technology, which was to start on June 1, 2010. Due to further ankle surgery, the worker was unable to complete the course as anticipated.

The VRC also noted in the memo that the worker expressed interest in returning to his pre-accident employment. After considering the results of a Job Demands Analysis and meetings with the worker's case manager and sector manager, it was determined that the worker would be supported in returning to his pre-accident employment with the understanding that he would be provided with some adaptive and ergonomic equipment. The VRC indicated: "the cost relative to returning to gainful employment with pre-accident employer would be significantly less and therefore from a financial perspective, support his return to work with adaptive equipment. It is my opinion that this step should be facilitated as it is the most cost effective measure to take."

In a memo dated July 11, 2013, the WCB case manager noted to the file that based on a meeting with the sector director, the proposed return to work plan in the pre-accident employment could not proceed as planned and that other viable options should be discussed. On October 4, 2013, the WCB confirmed to the worker that the WCB would no longer support a return to work with his pre-accident employer requiring the purchase of adaptive/ergonomic equipment. On January 13, 2014, the worker appealed the decision to Review Office.

On April 17, 2014, Review Office confirmed that the worker should not be supported in returning to his pre-accident trade. Review Office stated that the provision of vocational rehabilitation was discretionary. After considering all file information, Review Office concluded that returning to work in his pre-accident line of work would not be physically and financially successful for the worker. On February 19, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable legislation and policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the work

               (a)   could, in the opinion of the board, experience along-term loss of earning capacity;

(b)   requires assistance to reduce or remove the effect of ahandicap resulting from the injury; or

(c)   requires assistance in the activities of daily living.

WCB Policy 43.00, Vocational Rehabilitation (the “Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The Policy states that: “Vocational rehabilitation is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness.” It also provides: “While discretionary, vocational rehabilitation should be consistently applied to all eligible workers.”

Worker’s position:

The worker was self-represented at the hearing. The worker's father, who was also the accident employer, also participated in the appeal. The worker made a passionate plea for support in returning to his family business. In a well-prepared submission, the worker asserted that the cost to the WCB in supporting him to return to his pre-accident work with adaptive equipment would be more cost effective to the WCB than retraining him in civil engineering or providing him with top-up partial wage loss benefits for the rest of his working career. The worker's proposal was that if the WCB could provide him with adaptive equipment and wage loss benefits for a month or two "while things get back on track," it would cost the WCB less in the long run and would result in the worker making more money than the other proposed options, doing what he wants to do, and being happy with the result.

Analysis:

The issue before the panel is whether or not the worker should be supported in returning to his pre-accident trade. In order for the appeal to succeed, the panel must be satisfied that returning the worker to his pre-accident employment would help the worker achieve maximum physical, psychological, economic and social recovery from the effects of his compensable injury. On a balance of probabilities, the panel finds that there are too many uncertainties associated with an attempt to return the worker to his pre-accident employment and therefore the plan should not be supported.

At the hearing, there was discussion of the "hierarchy of objectives" which is set out in section 4 of the Policy as follows:

4. To meet these objectives, the following solutions (hierarchy of objectives) will be considered and pursued in the sequence below:

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).

At the hearing, the worker submitted that supporting his return to work with the accident employer would be entirely consistent with the WCB's hierarchy of objectives. Unfortunately, the facts in this case are unique and simply reinstating the worker with the accident employer is not reasonably feasible. This is not a situation where the worker can be reintegrated into the active business operations of the accident employer. At the hearing, the evidence of the worker and his father was that subsequent to the worker's injury, the paving stone enterprise went out of operation. Most of the equipment (bobcat, trailer, half-ton truck) was sold, leaving only a few miscellaneous items like shovels, rakes and wheelbarrows. It has been seven years since the business was in operation so any goodwill that had been built up would have been eroded.

Based on the foregoing, the panel finds that there is no accident employer to which the worker could return. For all intents and purposes, the worker's request for support in returning to his pre-accident trade amounts to assistance in becoming self-employed. In order to implement the worker's desired return to work plan, the worker's father/accident employer would have to be supported in reestablishing his paving stone business. This goes far beyond the type of assistance which the WCB provides in the context of vocational rehabilitation.

The worker submitted all that is required from the WCB is financial support in purchasing adaptive equipment which would allow the worker to perform some of the physical tasks of paving stone installation. The panel finds this approach is too simplistic and assumes that he and his father can easily reestablish themselves in the business. The worker and his father were unable to provide any type of business plan to prove that this would have been a viable enterprise, which they would essentially have to start again from scratch. While the panel admires the worker's optimism and strong work ethic, the evidence is not sufficient to satisfy us that his proposal is reasonably feasible.

The panel also has concerns regarding the worker's functional ability to perform the paving stone work. Even with adaptive equipment (such as a skid steer with hand controls, motorized wheelbarrow, etc), the panel finds that the work of laying paving stones would not reasonably be within the worker's physical limitations. The suggestion that employees could be hired to perform the more physical tasks does not take into account that as a new start up business, this may not be economically feasible. Based on the information before us, we just do not see returning to work with the accident employer as being workable.

The panel was impressed by the worker's passion and we acknowledge his comments that academic learning is not his strong suit. The worker expressed a strong desire to work with his hands. The panel notes that while paving stone installation may be beyond the worker's physical restrictions, there may still be other installation/servicing types of occupations which would provide employment more suited to the worker's skills, aptitudes and interests. The worker's vocational rehabilitation plan evolved such that the emphasis had been placed on returning the worker to the paving stone business. Opportunities in other "hands-on" fields had not been fully explored due to the worker's specific interest in returning to the family business. As the panel has determined that this is untenable, we would suggest that other potential installation/servicing occupations be investigated further.

For the foregoing reasons, the panel finds that the worker should not be supported in returning to his pre-accident trade. The worker's appeal is dismissed.

Panel Members

A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Presiding Officer

Signed at Winnipeg this 5th day of May, 2015