No comparable positions available for worker performing modified duties years after workplace injury: Tribunal
An Ontario worker has won his appeal for workers’ compensation benefits following the closure of his employer while he was performing modified duties.
The 47-year-old worker began working with the accident employer, a truck manufacturing company in 1992. Within a few years, he was employed in the company’s customer ready centre, where assembled trucks were brought for fixing problems that 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 duties 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 working, 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, acupuncture, and massage therapy.
Different positions with modified duties
In 2004, the company implemented a different manufacturing model and the worker left the customer ready centre for a position in which he taught other employees. However, the position 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 difficulties, 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 determine what parts were needed for each shift, locating the parts, and unloading them in the various 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 disposing of waste. He applied to be a team leader, which he believed would be primarily an administrative 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 other employees where they could find them.
In early 2009, the company informed its employees it would be closing the plant in March. The worker requested additional benefits for a permanent impairment for his left ankle injury as well as ongoing loss-of-earnings benefits following the plant’s closure. The WSIB granted him a small non-economic loss award of three per cent for his ankle impairment — deeming it to have reached maximum recovery in 2008 — but denied him ongoing benefits after the plant closure.
The worker appealed, arguing he had to be heavily accommodated 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 impairment — recognized by the WSIB through a non-economic loss award — that affected his ability 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 employment agency, the worker entered a self-directed retraining program and was able to start his own business in July 2011, so he claimed full loss-of-earnings benefits between the plant closure in March 2009 and that date, with further benefits beyond that period.
The Ontario Workplace Safety and Insurance Appeals Tribunal referred to the WSIB’s operating policy manual document covering entitlement following work disruptions and permanent 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 program. As a result, the worker fell in the category of a clinically stable 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 injury, 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 evidence that while the team leader was, in principle, a meaningful position for the accident employer, the modification of the position to suit the worker’s compensable left ankle condition made the job light enough for the worker, 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 securing similar work after the plant closed and found it was reasonable for him to enter the retraining 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 restoring his pre-accident earnings 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.
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