Suitable accommodation not so suitable for injured worker

An Ontario worker who seriously injured his foot and was unable to return to his pre-injury job was assigned an unreasonable suitable occupation for retraining leading to an incorrect earning ability calculation and benefits level, the Ontario Workplace Safety and Appeals Tribunal has ruled.

The 57-year-old worker was a fitter welder for an industrial company. On July 31, 2007, the worker stepped into an open hole in the plant floor and fractured three metatarsal bones in his left foot. Three weeks later he underwent surgery, followed by three more operations in October 2007, November 2008, and September 2009.

The Ontario Workplace Safety and Insurance Board (WSIB) approved entitlement for loss-of-earnings benefits for the time the worker was off work and a five per cent non-economic loss benefit for a permanent impairment in the foot.

The worker was unable to return to his pre-accident job, which involved a lot of time spent on his feet, because he had restrictions on walking on uneven ground and limiting his overall walking and standing. As a result, the WSIB referred him to labour market re-entry (LMR) services. Following an assessment, the LMR services determined the occupation of water and waste plant operator as a suitable employment or business (SEB) goal to work towards. The LMR plan supported the worker taking a certificate program at a community college and another certificate from the Walkerton Clean Water Centre.

Completed retraining

The worker completed his LMR program and all required training for the position of water and waste plant operator — including an unpaid work placement — on Sept. 23, 2011. However, despite various job searches, he wasn’t able to find work in his SEB. He took a security guard course and worked briefly as a security guard, but was unable to continue due to the amount of time the job required to be spent on his feet. In April 2012, the worker tried to return to work as a fitter welder, but he had to stop after just four days.

Though the worker was unable to find a job in his SEB, the WSIB determined he was able to earn the wage level associated with that type of employment — which the board determined was $19 per hour and the same as that he had been earning as a fitter welder before he injured his foot. As a result of this calculation, the worker would receive no further loss-of-earnings benefits once he found work.

While he was in the LMR program, the worker’s foot had deteriorated and he ended up having surgery on June 14, 2012, that involved the amputation and resection of his fifth metatarsal bone, a tendon lengthening, and other procedures. The WSIB granted a redetermination of his non-economic loss benefits, but upon assessment the award remained at five per cent. An appeals resolution officer from the WSIB also awarded the worker loss-of-earnings benefits for two months after the surgery, to Aug. 21.

The worker found a job with a cable company call centre in November 2012, but quit in March 2013 as he felt it didn’t suit him or his abilities. The then found a job as a Commissionaire security person in June 2013. He filed an objection to the denial of loss-of-earnings benefits following the completion of his LMR program, arguing that he was only capable of earning minimum wage and not $19 per hour. He also said he should have received full loss-of-earnings benefits for a period longer than the two months following his June 2012 surgery — to Sept. 18 of that year.

The tribunal noted that the WSIB’s policy document on determining suitable occupations stipulated that SEBs were “a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings.” The SEB must also be available with either the worker’s injury employer or in the labour market. The labour market can be expanded if necessary to identify opportunities and present the possibility of relocation.

The tribunal found that while the worker had limits on walking and standing when he started his LMR, his foot became worse while he was participating in his LMR program and he had additional surgery that further limited him. This increased the worker’s physical restrictions to the point where he needed “a mostly sedentary job,” the tribunal said.

While the worker successfully completed his training and an unpaid work placement for a water and waste plant operator, the tribunal found that there wasn’t a reasonable prospect for the worker to find such a position. This was because the market for the job was weak, the worker was unable to get even one interview even though he performed a “diligent job search” and did well in his training, and the LMR service providers were also unable to provide the worker with any leads. In addition, the job itself was specialized — only municipalities operate water and waste treatment plants — and there were only so many municipalities, especially within a reasonable distance of his home.

The only success at finding jobs came for the worker when he looked for those outside of his SEB, such as a security guard position. However, his physical restrictions came into play and he couldn’t stay at the job.  When he found work at a call centre, the worker found it didn’t fit his abilities well.

The tribunal determined the SEB that had been assessed to the worker was not available within the meaning of the WSIB policy document and the provincial legislation, and therefore wasn’t reasonable. His only successful job search was as a Commissionaire. His hourly pay at the jobs he found — $10.75 at the call centre, $12 as a security guard, and $13.06 as a Commissionaire — were all under the $19 per hour that his SEB was estimated at, so the tribunal adjusted the worker’s earning ability to the Commissionaire rate. As a result, the worker was entitled to loss-of-earnings benefits for the difference between $13.06 and his pre-injury rate.

The tribunal also found that the worker didn’t return to work after his final surgery until Nov. 2, 2012. Since he didn’t have a job waiting for him after his surgery, his claim for full loss-of-earnings benefits post-surgery to Sept. 18, 2012, was reasonable.

The WSIB was ordered to pay the worker full benefits from the date of his last surgery until Sept. 18, 2012, then partial loss-of-earnings benefits based on his ability to earn $13.06 per hour at 40 hours per week.

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