WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090091
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Participating
REPRSENTATIVES: Worker, Employer
WITNESS: Employer
ATTENDEES: Worker, Worker Representative, Employer, Employer Representative, Witness
HEARING DATE: August 19, 2009
ISSUES
The worker is objecting to the decisions to deny payment of Loss of Earnings (LOE) benefits for the period January 9, 2008 to January 22, 2008 as well as the decision to deny LOE benefits from April 1, 2008.
HOW THE ISSUES ARISE
This now 43 year old Truck Driver injured his left shoulder on November 8, 2007 when he over exerted his left shoulder trying to prevent a pallet from tipping over.
Initially the worker did not lose time from work and the employer provided the worker with modified duties. The initial diagnosis was left shoulder strain and the worker was given restrictions for work. The worker stopped work on January 9, 2008 and medical reports were submitted to support this lost time. The Adjudicator requested a medical opinion from a WSIB medical consultant regarding the worker’s level of impairment during the period January 9 – 22, 2008. The medical consultant opined that there was no clear explanation for the absence. The Adjudicator after reviewing the information contained in the claim file and considering the medical opinion concluded the worker remained partially disabled and capable of performing the modified duties provided by the employer. A letter confirming this decision was issued on February 22, 2008.
Information was submitted to the claim file indicating the worker was terminated as of April 1, 2008. The worker and employer stated it was due to absenteeism. The worker requested LOE benefits as he was not yet able to return to regular employment as well as re-employment rights. The Adjudicator after reviewing the information contained in the claim file concluded the worker was not entitled to LOE benefits from April 1, 2008 as the termination was due to employment reasons and not the injury. The Adjudicator also concluded the worker did not have re-employment rights as he had not been employed for a full year prior to the accident. A letter confirming this decision was issued on June 6, 2008.
The worker disagrees with these decisions, and his case has been referred to the Appeals Branch for further consideration.
AUTHORITY
Policy documents:
- 11-01-13 Benefit of Doubt
- 15-03-01 Recurrences
- 18-03-02 Payment of LOE Benefits
- 19-02-03 Workplace Party Co-operation
- 22-01-03 Workers’ Co-operation Obligations
EXHIBITS
No exhibits were presented at the time of the hearing.
ASSESSMENT OF THE EVIDENCE
Upon assessing the available information contained in the claim record and that presented at the Hearing, I find that the worker is entitled to full LOE benefits from January 9, 2008 to January 22, 2008. The worker is not entitled to LOE benefits after April 1, 2008.
In arriving at my decision, I considered the evidence and submissions in the context of the relevant legislation and Workplace Safety and Insurance Board (WSIB) policy. The following is a summary of my observations and assessment of the evidence in reaching my conclusions.
File documentation
The Employer’s Report of Injury/Disease dated November 9, 2007 indicated that on November 8, 2007 the worker tried to prevent a pallet and pallet jack from tipping over and as he reached out with his left hand he felt an immediate discomfort in his left shoulder. The employer also stated the worker had the weekend off to recover and on November 12, 2007 he continued to experience discomfort and sought medical attention.
The Worker’s Report of Injury/Disease indicated the worker first injured his left shoulder on November 8, 2007 and sought medical attention the same date. The worker stated the doctor authorized three days off then modified duties for two weeks. The worker stated he was put back on regular duties and on November 13, 2007 he re-injured his left shoulder trying to move a pallet. The worker reported that on January 9, 2008 he awoke with a tingling feeling in his left arm and hands and the doctor put him off work until January 22, 2008.
The Employer submitted an Employer’s Continuity Report dated January 16, 2008 reporting that the worker had re-injured his shoulder on December 17, 2007 shovelling snow.
The initial medical report received was from St. Joseph’s Health Care dated November 8, 2007. The report stated the worker was pulling a pallet when it started to fall. The worker felt his left shoulder pop out and he put it back in.
X-rays were taken on the left shoulder on November 8, 2007. The results showed:
"The humeral head is located with the rest of alignment also appropriate. No fracture is identified. Note is made of a small acromial spur at the AC joint."
Urgent Care Associates submitted a medical report dated November 8, 2007 providing a diagnosis of possible shoulder sprain or dislocation. The doctor recommended an orthopaedic referral and advised the worker was to be off work 72 hours then on light duties for two weeks.
The next report from Urgent Care Associates dated November 15, 2007 provided a diagnosis of left shoulder strain and questioned a rotator cuff injury. The report also stated they were aware of a prior recent dislocation. Restrictions of lifting, use of upper extremities and operating heavy equipment were provided and the restrictions were to continue another 6-14 days.
The employer submitted a copy of a letter to the worker dated November 27, 2007 pertaining to the return to work agreement. The employer outlined that they would continue to provide modified duties until he was able to return to full duties with no restrictions at a rate of $15.00 per hour and that his hours would be 0830 to 1600 Monday to Friday. The worker was to inform them of any medical appointments 24 hours in advance and that the worker could leave no earlier than one hour prior to any appointment. The employer also requested that the worker supply a doctor note to confirm he attended the appointment and that he should return to work following the appointments. The employer also stated the worker would not be paid for the time absent without a doctors’ note. The worker was also to advise of any required absences and that lost time for personal reasons would not be paid.
A Physiotherapy Assessment report dated December 4, 2007 provided a working diagnosis of left shoulder tendonitis and stated the worker was to avoid overhead activities.
Dr. Dempsey completed a Functional Abilities Form (FAF) dated January 3, 2008. The doctor provided restrictions of bending or twisting with the left shoulder, no repetitive movement of the left shoulder as well no below shoulder activity with the left shoulder and no above shoulder activity with the left upper limb. The doctor gave no specific timeline for the restrictions.
The physiotherapist completed a FAF on January 8, 2008 providing the same restrictions and estimated the restrictions would continue until February 26, 2008.
Dr. Dempsey completed a medical report dated January 9, 2008. The doctor stated the worker was at physiotherapy lifting weights when he felt a weird feeling in the left shoulder. The doctor reported tenderness in the left shoulder and stated the decreased range of motion was unchanged. Dr. Dempsey authorized the worker to remain off work until he saw an orthopaedic surgeon and stated the worker could return to modified duties on January 22, 2008.
The worker submitted a progress report dated January 14, 2008. The worker stated he was still sore and unable to lift any weight and that the doctor had put him off work until January 22, 2008.
The employer submitted a letter dated January 15, 2008 to the WSIB complaining that the worker was not attending the employer’s offices before or after some physiotherapy appointments nor did he supply medical notes to authorize the absences. The employer was also concerned about the current lost time as they felt the modified duties were very light in nature.
Dr. Rouleau saw the worker in consultation on January 18, 2008. The doctor reported that the worker had fallen in the parking lot before coming to see him. The doctor reported x-rays taken were normal and the doctor opined the worker had a rotator cuff tear. Dr. Rouleau recommended the worker stop driving any car or truck and to have an MRI and continue physiotherapy.
Dr. Dempsey completed a progress report on January 21, 2008. The doctor provided a diagnosis of rotator cuff tear and dislocation of the left shoulder. The doctor reported a painful left shoulder with decreased range of motion and function. A restriction of no repetitive or heavy use of left upper limb was given and the doctor estimated possible full recovery in four to six months.
The physiotherapist completed a progress report on January 23, 2008 noting decreased range of motion and strength and positive impingement sign. Restrictions including limited use of left arm at work and no overhead activities were given.
The employer issued a further return to work agreement on January 28, 2008. This agreement was basically identical to the previous agreement except that the clause concerning not being paid without a doctor’s note was removed.
The worker underwent an MRI of the left shoulder on February 3, 2008. The results showed:
"Small low-grade partial thickness articular surface tear of the subscapularis tendon. Rotator cuff tendons are otherwise normal.
Mild degenerative disease of the acromioclavicular joint"
The Adjudicator spoke with the worker on February 8, 2008 in memo 13 regarding the lost time in January 2008. The worker advised that he re-injured his left shoulder at physiotherapy on January 9, 2008 and saw his doctor the same day and he authorized him to remain off work.
The employer spoke with the Adjudicator on February 13, 2008 in memo 15. The employer stated the worker was having attendance problems and had worked only 10.5 hours last week, 15 hours the week before that and 7 hours the week prior to that. The employer stated the worker was scheduled to work 35 hours per week.
On February 13, 2008 the employer sent a memo to the worker regarding the modified work program. The employer pointed out the worker’s attendance over the past two months had become sporadic and also noted that although the return to work agreement stated the worker was to start work at 8:30 am he was arriving continuously between 9:00 am and 9:15 am with departures early on most days as well. The employer stated the worker was expected to start work at 8:30 and that physiotherapy appointments should be scheduled after 3:30 pm. The employer also advised the worker that should he not follow the terms of the agreement more formal disciplinary action would be taken.
On February 22, 2008 the Adjudicator spoke with the WSIB medical consultant regarding the worker’s level of impairment between January 9 and 22, 2008. In memo 19 it is documented that the medical did not support that the worker was unable to work.
Dr. Athwal saw the worker in consultation on February 27, 2008. The doctor noted the worker complained of pain in the left shoulder as well as paresthesias in the ulnar nerve distribution and a positive Tinel’s sign at the elbow. The doctor noted the worker opted to continue with non-surgical treatment and that he was to continue with physiotherapy. The doctor stated there was a 5lb weight restriction on the left side and no overhead activities.
Dr. Dempsey completed a FAF on March 6, 2008 stating restrictions were to continue approximately 16 weeks.
The employer submitted a copy of a memo to the worker dated March 13, 2008 concerning attendance issues. The memo noted that the worker had arrived late on March 11, 2008 and did not report to work on March 12, 2008. The employer advised the worker that as previously outlined poor attendance would not be tolerated and that he was being suspended for three days without pay. The employer also indicated that if the undesirable behaviour continued that the employer would consider termination of employment.
The employer submitted a copy of a letter dated April 1, 2008 to the worker outlining that as he had taken March 31, 2008 off without providing a doctor’s note and due to his overall attendance record his employment was being terminated. The employer also attached a copy of the worker’s attendance record from November 8, 2007 up to March 28, 2008. Up to February 13, 2008 when the return to work agreement became very specific in regard to expected start time and time off requiring a doctor’s note, the worker was absent from work 12 days where the absence was not recorded as being related to his shoulder. In the same time period the worker was late arriving for work on 9 occasions. Between February 13, 2008 and his suspension on March 13, 2008 the worker was absent on 3 occasions not recorded as being related to the injury. The worker arrived late on 3 occasions. After the completion of the suspension where the worker was advised he required medical notes the worker was absent only on March 31, 2008. There was no indication of further lateness.
Worker testimony
The worker testified that he was working as an on call driver which meant he would call the employer in the morning and if not the company could call at anytime. The worker indicated that his contract allowed him to call in and say he was not available as it was his discretion whether he worked or not. The worker stated that prior to the accident he called everyday and that he worked from 6-8 am to 4:30-5 pm everyday. The worker indicated that he has been a driver for the past 15 years and has never done administrative or office work.
The worker testified that the modified work agreement on November 27, 2007 allowed him to leave one hour early to go to physiotherapy. The worker stated that he could also call in personal with no pay at his discretion. The worker testified that the second modified work agreement in January 2008 was changed to state that physiotherapy was to be taken before or after work but that he could still call in for a personal day off. The worker testified that the third modified agreement on February 13, 2008 was changed again. The worker stated he was to come to work everyday and bring in a doctor’s note if he was not in. The worker stated he was also no longer able to take time off. The worker indicated this was not in his original contract of employment as the employment contract indicated he could call in.
The worker testified that during his modified duties he shredded paper twice from November to April and that took a couple of hours each time. He also answered health and safety questions which took four to five days in total. The worker indicated that he stuffed envelops every two weeks which took one to one and a half hours maximum, he also stuffed T4 slips in January 2008 for two hours maximum. The worker testified that he audited log books which took two to three days. The worker testified that 90% of the time he sat and did nothing and only 10% of the time was he doing work. He stated that he played video games on his Game Boy and Cell phone. The worker stated that the employer knew he was not working, and he also stated that the activities he did were not scheduled. The worker indicated this was totally different than driving and that he did not enjoy the modified duties and he felt like he was in detention. The worker testified that he reported to Mr. X or Mr. Y and that they saw when he was finished. The worker stated it was only on the third modified work plan that he was to ask for work.
The worker testified that he did have difficulty with attendance as cleaning his truck in the winter re-injured his shoulder and driving his pick up truck was also a problem. The worker stated that three to five days he was actually sick and the rest of the time was due to his shoulder. The worker also stated that he told his employer it was unsafe to drive almost daily and that he had re-injuries due to cleaning the truck. The worker indicated he also told his Adjudicator about his problem driving but the Adjudicator offered no suggestions and did state the WSIB would not pay to have someone clean his truck. The worker testified that the employer set his start time and that he did not ask for a later time.
The worker testified that in January 2008 Dr. Athwal indicated he should not be driving. The worker stated that when he saw his family doctor in March 2008 he saw the paper regarding no driving and that on March 13, 2008 he paid for a copy of the January 2008 report which was given to his employer and Adjudicator. The worker stated that after that the Adjudicator offered to pay for a taxi to work and physiotherapy and that this started on March 25, 2008.
The worker testified that on March 13, 2008 he was suspended for tardiness and absences as the employer said he had missed too much time. The worker stated that it was due to problems with his shoulder and that only four to six times was the absence not due to the injury. The worker indicated his tardiness started after he was injured, he did not believe that he had a problem prior to the injury. The worker testified that driving back and forth and cleaning his truck caused the lateness. He stated he set his alarm for a specific time as he did not know when it would snow. When asked about checking weather reports the prior evening, the worker stated they were not accurate. The worker testified that on March 31, 2008 he woke up with the flu and was sick so he called in. The worker later testified that March 31, 2008 was a headache and not the flu. The worker stated he could not get in to see his doctor that day and that he was new to the city and did not know where walk in clinics were. He also stated that he was from New Brunswick and that they do not have walk in clinics. The worker stated he did not believe the employer would fire him for this as he was not paid for his days off. He did admit having motivation issues to drive to work and sit in a chair.
The worker testified that the Adjudicator did not warn the worker about the return to work policy and that he received no notice about the risks of not co-operating. The worker stated that he felt that he co-operated with return to work, medical and physiotherapy and he does not believe he missed any doctor’s appointments, but testified that he did not get to his doctor at all on days he re-injured his shoulder. The worker stated he does not believe the employer had a modified work program.
The worker testified that in March 2008 he let his A/Z license lapse. He stated he did not take the test as he did not have a truck to use to take the test and that he did not need the license as he was being taxied back and forth. The worker stated that he was reissued a G license on February 11, 2009.
Witness testimony
The employer witness Mr. X testified that he started with the employer in 2003 and has been in his current job since 2004. Mr. X stated that his role is to process paperwork for injuries and to speak with the injured employees. Mr. X stated the company does have a return to work program which is very flexible and that duties can vary based on skill.
The witness testified that prior to the injury the worker was an on call trucker and that he did call every day and that he was on the on call board. The witness stated that on call truckers could have a couple hours notice or a couple weeks notice of a job. The witness stated that a trucker would then keep reporting to whichever company they were sent to if that company liked them. The witness indicated that if a driver shows up late at another company that his company may or may not be advised. He also stated that if a trucker accepts an assignment they are expected to take the assignment. The witness stated he was not aware of any attendance issues with the worker prior to the accident.
Mr. X testified that the worker was initially given the orientation booklet and was told to review it for relevance. The worker also took log book training and other video training. Mr. X stated that at the end of the month they formalized a return to work agreement and that he wrote the agreement. Mr. X stated that he changed the 30 minutes for travel to 1 hour based on the worker’s request. Mr. X stated that he went through the agreement with the worker paragraph by paragraph. Mr. X stated the worker expressed concern about travel to physiotherapy and that the Adjudicator called the physiotherapist and arranged a later start time for physiotherapy and the worker to go home after that. Mr. X stated this was changed as there was no continuity to the work day.
The witness testified the second modified work agreement was prompted due to the worker’s tardiness. The worker was told he required a doctor’s note if he was off for the day as it was becoming an issue and that the employer would pay for the notes. The witness stated the worker advised them he was not sleeping well at night and the worker was advised to see his doctor about this. The witness indicated that the worker’s lateness did affect their ability to find work for the worker. If the worker was off, it would delay jobs so someone else would have to do what they were going to assign.
Mr. X testified that the February 13, 2008 letter to the worker was presented to the worker in the office and he was asked to read the memo. Mr. X stated the worker left the office knowing and understanding the memo. Mr. X indicated that after the memo the worker did inform Mr. Y when he finished jobs. In the past the worker would do the work and not tell anyone. Mr. X stated he did not hear of issues after that and the worker did follow up with him if he had given the worker any jobs to do.
The witness testified that during the first month of modified work the worker was kept busy. The worker was doing incident detail and training and reading books on rage in the workplace. The worker also had an opportunity for skills development. The witness felt that 80% of the worker’s time was occupied. The witness did state that after that it went downhill. The worker was auditing log books which kept him busy for two weeks but there were times the worker had nothing to do as January and February are their slow times. The witness stated that return to work is make work as they are a smaller company and they look at trying to get different things for the workers to do. The witness indicated he did not expect the injury to last so long, but felt the company had work for months on end. The witness did not fell the worker would be unproductive and they tried to find work for him to do. The witness indicated the T4’s could be for up to 425 people due to the transient nature of the business. The worker did not finish the job and payroll had to do this. The witness indicated they had another person on modified from January to July.
Mr. X testified that the worker’s suspension was due to lack of notification of attendance. Mr. X indicated sometimes the worker did not call in until 9 or 10 or 11 am to state he would not be coming in. Mr. X stated when the worker called it was to voicemail. He also indicated that if the records showed not in called in sick this is all the worker stated. Mr. X stated that out of 16 Mondays the worker was in only five. He told the worker he had to show up for work, the worker agreed to show up each morning. Mr. X stated the worker sometimes said he was late due to traffic or cleaning the windshield of his vehicle.
The witness testified the employer’s definition of absenteeism is if a person is not at work when they are supposed to be. The witness indicated that when the worker went from on call to modified duties 35 hours were made available so there would be no loss of earnings. The witness stated the terms of the return to work agreements got tighter at the end as he felt it was being abused. The witness stated the company does not have a different policy for non work related absences versus work injuries.
Worker representative submission
The worker representative put forth that the Adjudicator had not advised the worker or the employer on WSIB policy. The representative argued that policy identifies that notice of non co-operation must be given prior to reducing or terminating benefits. The representative argued that this was not done in this case. The representative pointed out that the worker’s doctor suggested lost time and this had nothing to do with the work duties and was a reasonable amount of time off. The representative argued that the adjudicator did not discuss this with the physician.
The representative also argued that the work was not suitable for the worker as there were driving issues as the driving aggravated the worker’s condition. The worker representative put forth that this was not remedied until March 23, 2008 and that the WSIB and the employer should have given the worker more time. The representative argued that work was not truly available for this worker at least not enough work to do. The representative suggested that this contributed to the attitude problems with the employer.
In regard to obtaining medical notes, the worker representative suggested the employer did not believe the notes when he got one so why should he go to the doctor. The representative suggested the same thing got the worker fired and that he should not be fired for injury related absences. The representative opined that the problems started in November 2007 after the injury and that aggravation of the shoulder could have been avoided if a taxi had been granted earlier. The worker representative argued that the worker received no verbal or written warnings and therefore benefit of doubt should be given to the worker.
Employer representative submission
The employer representative put forth that there was no need for a letter from the Adjudicator as the worker was co-operating. In regard to the lost time in January the representative suggested Dr. Dempsey provided no explanation as to why the worker should be off and that a doctor’s report on January 9, 2008 provided continuous restrictions as previously outlined.
The employer representative put forth that legislation regarding the worker being let go does not require proof of just cause only that it is not related to the injury. The representative argued that this was an employment situation as the worker failed to report on time and did not provide medical notes as was agreed to. The representative argued that the employer conducted due diligence and noted that the discipline had escalated and the employer did discuss this with the Adjudicator. The representative argued that asking an employee to show up on time or provide medical notes was not unreasonable.
Regarding the availability of work, the representative noted the employer testified that the worker failed to inform anyone of completion of tasks and did not ask for work. The representative noted that the employer was not obligated to provide permanent modified until a Non Economic Loss has been decided upon.
Analysis
Policy on worker’s co-operation obligations 22-01-03 provides guidelines on when benefits can be reduced or suspended.
A worker who is receiving benefits under the insurance plan, or who is entitled to do so, is required to
- provide the WSIB with any information necessary to adjudicate the claim
- co-operate in health care measures the WSIB considers appropriate
- undergo an examination by a health professional selected and paid for by the WSIB
- undergo an examination by a health professional selected and paid for by the employer if directed by the WSIB
- co-operate in early and safe return to work (ESRTW)
- co-operate in all aspects of labour market re-entry (LMR) assessments and plans, and co-operate in all aspects of return to work (RTW) placement programs.
If a worker does not fulfill these obligations, the worker's benefits may be reduced or suspended.
If the WSIB determines that a worker is not co-operating with the obligation(s), the decision-maker notifies the worker of the
- obligation to co-operate
- finding of non-co-operation, and
- consequences of this finding (i.e., the reduction and/or suspension of benefits).
Notice is given verbally (if possible), and confirmed in writing in every case.
The WSIB may reduce or suspend a worker's benefits if after notifying the worker of the obligation(s), the worker
- fails to co-operate with the obligation(s), and
- does not have a legitimate reason for not co-operating.
I will first address the issue of benefits from January 9, 2008 to January 22, 2008.
I note that while Dr. Demsey did not provide any explanation as to why the worker was being taken off work he still did advise the worker to remain off work at that time. Therefore the worker was following the doctor’s advice when he remained at home during this time frame.
I note that medical reports concerning the worker’s level of impairment were not reviewed until after the worker had again returned to work at the instructions of his doctor’s. Although medical reports when reviewed by the WSIB medical consultant suggested that the worker was still capable of modified duties during the period in question, the worker had not been advised that his benefits may be reduced or suspended if he was capable of working and was not co-operating in that return to work.
Policy identifies that prior to suspending or reducing benefits the worker must first be advised of his obligations to co-operate and be given a chance to demonstrate co-operation prior to benefits being terminated.
In this case, although the specific level of impairment was in question, the worker did follow his doctor’s advice and return to work when advised to do so.
The evidence supports that the worker was co-operating in his return to work in regard to the time off during January 9, 2008 to January 22, 2008 as he was following doctor’s advice and the worker himself would not necessarily be aware of his exact level of impairment. The worker was also not advised of his obligation to return to work and was not provided with an opportunity to co-operate prior to benefits being suspended.
I find the worker is entitled to full LOE benefits for the period of January 9, 2008 to January 22, 2008.
In regard to the issue of LOE benefits following the worker’s termination, I note that the worker did have 12 days of absence not related to the shoulder as well as 9 days where he arrived late for work despite being made aware in each return to work agreement that his expected start time was 8:30 am.
Following the final return to work agreement on February 13, 2008 and the suspension on March 13, 2008, the worker had a further 3 days of absence not related to the shoulder and a further 3 days where he arrived late.
Following the suspension and specific instructions that a doctors note must be obtained for absences, I note the worker had no further lateness however did not provide a medical note for March 31, 2008 which the worker testified was not related to his injury.
I note that when questioned about his lateness, the worker indicated it was due to cleaning his windshield and traffic as it took longer to clean the windshield with only one arm.
The worker was questioned as to why he did not check weather forecasts the night prior to snow, the worker indicated these were not accurate and he set his alarm at the same time every day. In my opinion this is not a reasonable act for someone whether they have an injury or not. If a specific start time is in the return to work agreement it is the person’s responsibility to do whatever is necessary to arrive on time. Knowing that cleaning the windshield was taking longer and knowing that in winter storms can arise a reasonable act would be to allow oneself enough time to get ready for work and arrive on time by adjusting what time the alarm was set.
In regard to obtaining medical notes, the worker testified that he could not get in to see his doctor on the same day. When walk in clinics were suggested in the hearing, the worker testified that he was new to the city and was not familiar with the locations of walk in clinics. He also stated that walk in clinics did not exist in New Brunswick.
Although the worker testified that he did not know where walk in clinics were, he did not testify that he was not aware of the existence of these clinics. I am aware that walk in clinics can be located either through telephone directories or through the internet.
The worker also testified that he was unfamiliar with the city as he was new there suggesting a reason why he did not seek medical attention at walk in clinics. I note the worker’s pre-injury job was that of truck driver so it is not unreasonable to assume that the worker would have access to maps of some sort to assist in locating different places.
The evidence supports that the worker did not make reasonable efforts to reduce his tardiness or the requirement to obtain medical notes for absences as requested by the employer.
The evidence supports that the employer’s actions in regard to escalating the worker’s disciplinary actions was reasonable given the amount of absences and lateness not related to the shoulder.
The employer’s termination of the worker was also the result of lost time unrelated to the injury on March 31, 2008.
Although the worker testified that he was not actually performing duties on many occasions, the employer testified that the worker did not tell anyone when he completed tasks and the worker did not refute this statement. The worker did admit to playing video games and the employer acknowledged that they were aware of this activity. The employer did admit to slow periods in January and February however I note that the worker was of work for a portion of this slow period. I accept the employer’s testimony that they are a small company and that modified duties have to consist of make work activities which they would try to accommodate.
Although the duties were not a permanent modified position, the employer does not have an obligation to make a separate position available until a permanent impairment is confirmed. The work must however be of value to the company. The employer’s testimony identifying the type of work assigned is reasonable.
In considering the issue of benefit of doubt as raised by the worker representative, I do not find the evidence to be equal in weight and therefore benefit of doubt does not apply in this case.
I find the termination was the result of an employment situation and that modified duties would have continued to be available to the worker if he had not been terminated. I find the worker is not entitled to LOE benefits after April 1, 2008.
CONCLUSION
The worker is entitled to full LOE benefits from January 9, 2008 to January 22, 2008. The worker is not entitled to LOE benefits after April 1, 2008. If however a permanent impairment is confirmed the issue of permanent modified duties with the employer will need to be addressed by the operating area and consideration to labour market re-entry services will need to be addressed.
The worker’s objection is allowed in part.
DATED November 18, 2009
M. Flaherty
Appeals Resolution Officer
Appeals Branch