Worker was removed from job for reason other than compensated injury: Tribunal

Employer didn't know about injury and removed worker from forklift driving position due to safety concerns
By Jeffrey R. Smith
|hrreporter.com|Last Updated: 08/12/2008

An Ontario company was not obligated to re-employ a worker with a successful workers’ compensation claim in his old position because his removal was unrelated to the condition for which he received compensation, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.

The 66-year-old worker started with the company in 1964 as a material handler, which included the operation of a forklift, until November 2000, when he suffered a stroke. After the stroke, he was off work to recover and returned to his old position in September 2001.

Before long, the company became concerned with the worker’s ability to operate a forklift safely after he was seen driving it dangerously. It reassigned him to a general helper position in July 2002.

The worker filed a grievance for his removal from his material handler position as it had less pay and took an independent forklift driving test. He failed and the tester recommended he not be allowed to operate a forklift. The company agreed to pay him his old, higher wages to work in the new position in return for his agreement that he wouldn’t be assigned to the material handler position.

In March 2004, the company announced it would be closing down its plant and maintaining sales and distribution only at the location, effective July 1. The worker had the option of requesting to be moved to a position that wasn’t terminated, placed on a recall list that would delay his severance pay or be let go and receive his severance immediately.

The worker chose to be placed on a recall list, but a month later said he wanted his severance pay instead. The company agreed and he was officially terminated in August 2004.

During this time, the worker filed a workers’ compensation claim for hearing loss due to noise in the plant. The claim was successful and he filed another saying the company had breached its obligation to re-employ him in his old position after being unable to work from the injury.

The Workers’ Safety and Insurance Appeals Board denied the claim on Nov. 29, 2005, saying the worker’s hearing loss didn’t cause him to lose any time at work and he was doing his normal job duties in the general helper position when he was terminated. The worker appealed the ruling.

The appeal tribunal upheld the decision, saying the worker’s removal from the material handler position was not from the hearing loss but from the effects of his stroke. The company had no obligation to re-employ him in that job, the tribunal said, because he had been removed for a different reason than the injury he claimed. He had been removed because of his inability to safely drive a forklift.

“If the worker was unable to perform the material handler job because of his compensable hearing loss, then he would be regarded as being ‘unable to work’ within the meaning of board policy,” the tribunal said. “The overwhelming preponderance of the evidence establishes that the worker’s removal from the material handler position was not related to his compensable hearing loss.” See

Ontario Workplace and Insurance Appeals Tribunal Decision No. 278/08

(Feb. 13, 2008).

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