WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190064
OBJECTING PARTY: Worker
REPRESENTED by: Paralegal
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Oral Hearing on November 1, 2018
HEARD by: L. Diaz, Appeals Resolution Officer
DATED: November 28, 2018
The worker is objecting to the September 28, 2017 decision which concluded the modified work offered by the employer was suitable, and that he was not entitled to loss of earnings (LOE) benefits from January 7, 2017 onwards.
BACKGROUND
On the morning of February 17, 2016, while employed as a Cement Finisher, the worker was walking into work when he slipped and fell backwards onto an icy deck, injuring his lower back and right elbow. He was 61 years old at the time of injury and had been with his employer for approximately 14 years.
Entitlement in the claim was accepted for a right elbow contusion and L1 and L2 compression fractures for health care benefits. LOE benefits for a brief period following the injury were denied as the employer offered the worker modified duties which were subsequently determined to be suitable. The worker had been performing pre-injury accommodated work at the time of his injury under this claim as a result of a separate prior workplace injury to his left hand.
The file information confirms that since his return to work on February 23, 2016, the worker performed modified duties consisting of directing traffic at job sites, and being a second set of eyes when the cranes were being operated to ensure safety. A chair was also made available to the worker when performing the above tasks.
Effective January 3, 2017, the employer altered the above modified duties and informed the worker that his permanent modified work was being relocated to an indoors location in their shop/yard in Cookstown. Job duties consisted of the following: sorting small material; sweeping and cleaning the plant; cleaning equipment; and, tools and equipment inventory. The written modified work offer confirmed the worker would have the option of working while seated, and that there would be no production demand, which would permit him to take rest breaks as needed and would allow him the flexibility to attend any physiotherapy appointments. After performing the modified work for three days, the worker declined to return to work, citing concerns in relation to the driving distance. The worker’s last day worked was January 7, 2017.
The employer subsequently advised they received notice from the worker’s Pension Fund Administrator on May 15, 2017 that the worker was retiring and was applying for his union pension.
On June 7, 2017, the worker received a 21% Non-Economic Loss (NEL) benefit for his L1 and L2 compression fractures.
Case Manager’s decision
Further to the September 28, 2017 decision, the Case Manager concluded the modified work offered by the employer on January 3, 2017 was suitable, and as a result, the worker was not entitled to LOE benefits beyond January 7, 2017. Although the Case Manager noted the worker had expressed concern in relation to the driving distance, it was determined the worker could have pulled over to a rest stop and taken a brief rest/stretch break during his commute.
Worker’s position
On behalf of the worker, the Worker Rep argued that the modified work offered by the employer was unsuitable given the lengthy commute required to the employer’s shop, and having regard for the worker’s significant back impairment.
AUTHORITY
The following Operational Policy Manual documents apply:
18-03-02 Payment and Reviewing LOE Benefits
19-02-01 Work Reintegration Principles, Concepts, and Definitions
ANALYSIS
I find the modified work offered to the worker was unsuitable, and as a result, I find he is entitled to further benefits under the claim. In arriving at this decision, I have had regard for the worker’s testimony, the relevant file information, and the arguments presented.
The file information confirms the worker’s permanent medical precautions are as follows: no prolonged or repetitive flexion, extension, or twisting; no heavy lifting, carrying, pushing, and pulling; no above chest-level work; no prolonged sitting, standing, walking; no climbing stairs of ladders; and, no prolonged or repetitive below knee level work.
The worker testified that the modified work initially offered to him by the employer post-injury until December 2017, which included traffic control, was suitable. He confirmed that if that particular modified work had remained available, he would have continued performing it beyond December 2017. However, effective January 3, 2018, the worker was offered modified work in the employer’s shop in Cookstown.
The worker confirmed that during the three days that he worked in Cookstown at the shop, although he expressed some difficulty with performing certain activities, such as opening the garage door with the chain, and bending into a bin to retrieve and count screws, he could nonetheless request assistance from his supervisor with any task that he found difficult. As a result, overall, he acknowledged that the work itself was suitable.
The worker’s major concern appeared to be in relation to the driving distance to and from Cookstown. He testified that driving to Cookstown in the morning was a lengthy drive, however, his drive back home to Toronto was significantly more difficult, advising that it would sometimes take him almost 2 hours to arrive home.
Prior to the hearing, I had provided both parties with MapQuest directions from the worker’s home to the employer’s shop in Cookstown. MapQuest confirms that it was a 66.4 km commute, with the drive to work being approximately 50 minutes long.
However, the worker testified that it was principally the commute home that was the most difficult, often taking significantly longer than the commute to work. He indicated he had tried the commute for three days, however he testified that his legs would go numb by the time he arrived home due to the long drive and that his back would be extremely sore. Furthermore, although it had been suggested to him by the Case Manager that he occasionally stop and pull over to take a break, he added that it was too difficult to do so because traffic was too heavy.
As a result of the worker’s concerns in relation to his commute home, I did a quick search on MapQuest after 4:00 pm, to determine how long it would have taken for the worker to drive from Cookstown to his home in Toronto. Over a period of three weekdays after 4:00 pm, results confirmed that the commute did in fact take longer than the commute into work, as had been indicated by the worker. I obtained an average of three days and I calculated that the worker’s commute home would take approximately 1 hour and 23 minutes during rush hour if the worker were to drive directly home. If he were to take two to three 15 minute rest breaks, then the commute home could easily take him 2 hours or longer each day. Google maps also confirmed that on certain days, the worker’s commute home could take just over one hour if the traffic were light, however, the commute could also take as long as 2 hours on certain days such as Friday afternoons with heavier traffic.
Policy 19-02-01, Work Reintegration Principles concepts, and Definitions, records the following, in part, with respect to suitable work:
Suitable work
Suitable work means post-injury work (including the worker’s pre-injury job) that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
Safe
When considering whether an offer of work is suitable, the workplace parties and the WSIB consider whether the work is safe, i.e., whether
the work poses a health or safety risk to the worker (e.g., should not cause re-injury or a new injury), to co-workers, or to third parties
the work is performed at a worksite that is covered by either the Occupational Health and Safety Act (OHSA) or the Canada Labour Code, and the worker has the functional ability to travel safely to and from the proposed worksite.
Although certain medical reports submitted to file, such as Dr. Kekosz’s June 27, 2018 report, Dr. Veidlinger’s May 16, 2018 report, and Dr. Wong’s April 28, 2017 report, question whether the modified work provided to the worker was safe, and/or that the worker could not perform the work, the worker ultimately concurred that the modified work itself was indeed suitable and acknowledged that, if required, he could request assistance with any particular task. As a result, I concur with the Employer Rep and find the work offered to the worker within the shop (emphasis added) was indeed suitable.
However, having regard for the worker’s lengthy commute home, I concur with the Worker Rep, and ultimately find that the modified work offered to the worker was not suitable. Although the worker’s approximate 50 min commute in to work from home could arguably have been rendered suitable by taking 1-2 rest breaks, as was recommended by the Case Manager, I find that his commute from work to home was quite lengthy and therefore rendered the modified work offered unsuitable. The worker attempted the commute on his first three days of work at the shop, however, testified that by the time he arrived home, his legs felt numb due to the length of his commute home. I find it would be unreasonable to expect the worker to commute more than two hours from work to home, and further find that this lengthy drive did not adhere to the permanent physical precaution of ‘no prolonged sitting’.
Consequently, having regard for the relevant file information, I conclude the modified work offered to the worker was unsuitable given the lengthy commute home which did not adhere to his permanent physical precautions. I therefore find the worker is entitled to full LOE benefits from January 7, 2017 until his retirement in May 2017.
Although the Worker Rep indicated in her closing arguments that the worker did not retire in May 2017, that he was merely applying for additional benefits as a source of income, I find there is insufficient information on file to confirm or refute his retirement, and as a result, entitlement to LOE benefits beyond May 2017 is left to the operating area to determine, subject to the workplace parties’ usual rights of appeal.
CONCLUSION
I conclude the modified work offered by the employer was unsuitable and that the worker is entitled to full LOE benefits from January 7, 2017 until May 2017. Entitlement to LOE benefits from May 2017 onwards, as indicated above, is left to the operating area to determine, subject to the workplace parties’ usual rights of appeal.
The worker’s objection is therefore allowed.
DATED: November 28, 2018
L. Diaz
Appeals Resolution Officer
Appeals Services Division