The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") thathe was not entitled to further vocational rehabilitation services.  A file review was held on October 26, 2015to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further vocationalrehabilitation services.

Decision

That the worker is not entitled to further vocationalrehabilitation services.

Decision: Unanimous

Background

On April 26, 2010, the worker suffered injuries to his right index and middle fingers from a work-related accident. His claim for compensation was accepted and various types of benefits were paid to the worker. In March 2012, his file was referred to the WCB's vocational rehabilitation branch, and an occupational goal was later developed for the worker in a career as a transit bus driver (NOC 7412, Bus Driver).

On March 8, 2015, the worker filed an appeal with the WCB's Review Office as he disagreed with a decision made by Compensation Services dated April 23, 2013 which stated that he was not entitled to additional vocational rehabilitation training as the occupation of a bus driver was within his restricted physical abilities and was the most cost effective plan to recoup a large portion of his average earnings.

In a decision dated April 15, 2015, Review Office upheld that the worker was not entitled to additional vocational rehabilitation services. Review Office noted that the worker was very specific in his appeal that he wanted the WCB to help gain employment with a specific employer. Review Office stated that the WCB did not provide vocational rehabilitation services that are employer specific. The goal of vocational rehabilitation was to provide the worker with the knowledge and the tools to become employable within a chosen field, in this case a bus driver. Review Office concluded that the WCB met its obligations under WCB policy 43.00 and that the worker was not entitled to additional vocational rehabilitation assistance. Review Office noted that the worker had successfully demonstrated his ability to work as a bus driver for the past two years.

The worker disagreed with Review Office's findings and an appeal was filed with the Appeal Commission. A file review was arranged to consider the worker's appeal.

Reasons

The worker has an accepted claim for injuries to his right hand arising from a 2010 workplace accident. He is seeking further vocational rehabilitation services.

Applicable Legislation and Policy

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

Subsection 27(20) of the Act provides for vocational rehabilitation assistance which may be available to a worker. This section is discretionary, benefits provided under this section are based upon the worker's actions and cooperation with the WCB and its policies.

WCB Policy 43.00, Vocational Rehabilitation, provides that the goal of vocational rehabilitation is to help a 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.

Subsection 22(1) of the Act provides, in part, that workers must co-operate with the WCB in developing and implementing programs for returning to work and rehabilitation.

WCB Policy 44.10.30.60, Practices Delaying a Worker's Recovery, outlines the responsibilities of a worker for taking reasonable steps to assist in their own recovery from the effects of a compensable accident, and for refraining from actions or inactions that will have a negative effect on that recovery.

Worker's Position

The worker was self-represented. In his appeal form, dated February 19, 2015, the worker referred to the October 4, 2012 decision from the WCB Review Office and the April 23, 2013 letter from the WCB case manager.

The worker disagreed with WCB decisions which have denied him additional vocational rehabilitation services. He has asked that the WCB provide him with training for a job. He advised that he would like to apply for a job with a specific employer and that he requires help from the WCB. He expressed the opinion that his deemed wage loss is based on employment with the specific employer.

In a letter dated March 1, 2015, the worker noted a Review Office decision dated October 4, 2012 which indicated that:

It should be noted that nothing in this decision prevents the worker from being provided with further vocational rehabilitation assistance in appropriate circumstances. In order for this to occur, the worker must first recognize the limitations of what he can be helped to achieve and the need for his civil cooperation in doing so.

The worker asked for assistance with an upcoming job interview.

Employer's Position

The employer is no longer in business in Manitoba.

Analysis

The worker is seeking further vocational rehabilitation services. The panel notes that provision of vocational rehabilitation services and benefits is discretionary and is subject to the Vocational Rehabilitation Policy (WCB Policy 43.00). The panel notes that the worker has been offered vocational rehabilitation services in the past. Unfortunately, the file evidence discloses that the worker has refused and/or failed to participate in the provision of these services and by his conduct has made it difficult for the WCB to provide services.

The issue to be considered by the panel is whether the worker is entitled to further vocational rehabilitation services. For the worker's appeal to be approved, the panel must find that the provision of the requested services is consistent with the Act and policies noted above. The panel was not able to make this decision.

The worker's current request is for vocational rehabilitation assistance to find employment as a bus driver with a specific employer in NOC 7412. As a starting point, the panel notes that the worker has found employment in National Occupational Code 7412 (NOC 7412), Bus Driver. The panel notes the worker identified the goal of bus driver in 2006, many years before his 2010 injury. In Appeal Decision No. 07/15 the appeal panel found that NOC 7412 Bus Driver was an appropriate occupation for the worker. The appeal panel noted that the worker was currently working as a bus driver which confirmed his aptitude and ability to perform this occupation.

The panel notes the purpose of the Vocational Rehabilitation Policy is to assist workers "...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 panel finds that the worker has achieved a return to sustainable employment in NOC 7412 and finds that the purpose of the policy has been achieved. The panel finds that the request for assistance to obtain a job with a specific employer is beyond the intent of the policy.

The worker's request for vocational rehabilitation assistance is declined and his appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of December, 2015