Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2019 March 2019 | News persisted after manufacture or installation of items that were specially ordered by customers. The position involved repairing or installing mufflers, exhaust, brakes, starters, transmission, plumbing, tires, or accessories. On Jan. 25, 2000, the worker was performing his regular du- ties when a truck driven by a colleague hit him and drove over his left foot. He injured his left shoulder, lower back, and left ankle, causing him to miss about two weeks of work. The Ontario Workplace Safety and Insurance Board (WSIB) granted his claim for loss-of earnings benefits for the period he was off work. When the worker initially returned to work, his injuries limited him to administrative duties. In May, he returned to the customer ready centre where he performed administrative quality control duties and later small repair jobs on trucks — he was unable to climb onto trucks or carry tires or heavy parts. He was allowed to sit while work- ing, while most of the others in the centre had to be on their feet to complete the tasks at hand. If the worker encountered a repair that he couldn't do because of his physical limitations, he tagged it for a co-worker to do. The worker continued to see his doctor about his injury and received regular treatment including physiotherapy, acu- puncture, and massage therapy. Different positions with modified duties In 2004, the company imple- mented a different manufactur- ing model and the worker left the customer ready centre for a po- sition in which he taught other employees. However, the posi- tion involved a lot of walking and stairclimbing to different areas of the manufacturing plant. This frequent movement and time on his feet bothered his ankle and it eventually became too difficult to continue. After about three years in the teaching position, the worker took another job in the plant's quality control area examining completed trucks. However, this position also had its difficul- ties, as the worker had to climb in and out of trucks frequently. He moved on again, this time to a sequencing job that involved reviewing paperwork to deter- mine what parts were needed for each shift, locating the parts, and unloading them in the vari- ous areas of the plant. The worker also had problems with the physical demands of the sequencing job, as he couldn't keep up with walking all around the plant, retrieving parts, or dis- posing of waste. He applied to be a team leader, which he believed would be primarily an adminis- trative position with supervisory responsibilities. However, after he got the position, he was asked to be a "floater" and help with regular sequencing duties as well. Since he couldn't do all the walking, the company provided him with a motorized cart to use in the plant. He also limited his movement by looking up parts on the computer and telling oth- er employees where they could find them. In early 2009, the company in- formed its employees it would be closing the plant in March. The worker requested additional benefits for a permanent impair- ment for his left ankle injury as well as ongoing loss-of-earnings benefits following the plant's clo- sure. The WSIB granted him a small non-economic loss award of three per cent for his ankle im- pairment — deeming it to have reached maximum recovery in 2008 — but denied him ongoing benefits after the plant closure. The worker appealed, argu- ing he had to be heavily accom- modated after his return to work and he was never able to get back to his full, regular job duties. At the time of the plant closure, he had a permanent impair- ment — recognized by the WSIB through a non-economic loss award — that affected his abil- ity to work in both his original position and the team leader job he was performing — with the accommodation of a motorized cart — when the plant closed. After several unsuccessful job applications through an employ- ment agency, the worker entered a self-directed retraining pro- gram and was able to start his own business in July 2011, so he claimed full loss-of-earnings benefits between the plant clo- sure in March 2009 and that date, with further benefits be- yond that period. The Ontario Workplace Safety and Insurance Appeals Tribunal referred to the WSIB's operat- ing policy manual document covering entitlement following work disruptions and perma- nent layoffs, which listed two different criteria for determining benefit — workers "who require close health care monitoring" and those with a stable clinical condition. In the worker's case, he wasn't in close health care monitoring as he wasn't in the early phase of recovery receiving WSIB-approved treatment, or on a graduated return-to-work pro- gram. As a result, the worker fell in the category of a clinically sta- ble condition, said the tribunal. The tribunal found that the worker wasn't performing his regular duties prior to the plant closure — the worker returned to work two weeks after his inju- ry, but was never able to perform the full duties of his pre-injury position. In addition, by the time the plant closed in March 2009, the worker was in a team leader position, but was performing modified duties that wouldn't be available elsewhere. "The panel infers from this evi- dence that while the team leader was, in principle, a meaningful position for the accident employ- er, the modification of the posi- tion to suit the worker's compen- sable left ankle condition made the job light enough for the work- er, but also essentially changed the position to the point that the worker was simply looking up parts and advising co-workers of where to find the parts," said the tribunal. "In the panel's view, a position this light, and modified, would not be generally available in the labour market." The tribunal pointed to the worker's difficulty in secur- ing similar work after the plant closed and found it was reason- able for him to enter the retrain- ing program — he was only 37 years old at the time of the plant closure and finding a new career where he could pace his work gave him "a better chance of re- storing his pre-accident earn- ings over the long-term," said the tribunal. The tribunal determined the worker was entitled to full loss- of-earnings benefits from March 27, 2009 — the date the plant closed — to July 6, 2011 — the date he started his business. It also returned the matter to the WSIB to determine if the worker was eligible for loss-of-earnings benefits after that date. For more information see: • Decision No. 3458/18, 2018 CarswellOnt 22456 (Ont. Workplace Safety & Ins. Ap- peals Trib.). Workers' compensation < pg. 1 Similar modified work not available in the labour market Credit: Shutterstock/Corepics VOF

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