DECISION NUMBER:

20230060

OBJECTING PARTY: REPRESENTED by:

WORKER

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

HEARING:

VIDEOCONFERENCE NOVEMBER 23, 2022

HEARD by:

DATED:

S. VAGADIA, APPEALS RESOLUTION OFFICER

DECEMBER 21, 2022

ISSUE

The worker objects to a Claims Adjudicator’s (CA) February 12, 2002 decision that found the employer offered suitable permanently modified duties.

BACKGROUND

On September 21, 2000, this then 23 year old labourer was shovelling when he hit something and his left shoulder “popped out” (dislocated). Initial entitlement was granted accordingly. The worker had surgery on April 11, 2001. A permanent impairment was envisioned following a Medical Consultant (MC) review. The worker was granted a 23% non-economic loss (NEL) award on October 8, 2002.

The employer offered a permanently modified job, which required upskilling. They paid the cost for the courses, training and related expenses. The WSIB continued to approve loss of earnings (LOE) benefits. The details were outlined in an October 31, 2001 letter. The employer raised concerns about the worker’s performance in his retraining program in a January 23, 2002 letter.

On January 29, 2002, the employer raised concerns about fraud involving the worker. His retraining program was suspended pending further investigation. On February 8, 2002, the employer indicated there was sufficient evidence to support their concerns and the worker was suspended.

A February 12, 2002 decision from the Claims Adjudicator (CA) noted the employer’s decision. The CA indicated the WSIB claim was closed effective January 30, 2002. This was because the worker removed himself from suitable, permanently modified duties at no wage loss.

The employer terminated the worker in April of 2002, following March 8 and April 12, 2002 hearings that confirmed the fraud allegations.

A CA’s December 15, 2008 decision found the following:

• Additional LOE benefits were not in order. This was because the worker remained able to perform the permanently modified duties had he not been terminated.

• Additional physiotherapy treatment was not in order.

A December 13, 2018 Case Manager (CM) decision noted the worker stopped working for a new employer on July 30, 2018. The worker indicated it was due to a recurrence of his left shoulder injury. The CM denied the recurrence due to a lack of medical evidence.

A CM’s June 29, 2021 decision denied entitlement to a June 28, 2019 recurrence. This was because the medical evidence did not support a significant deterioration to the compensable permanent impairment.

A November 8, 2021 CM decision accepted the worker sustained a significant deterioration with a permanent worsening date (PWD) of October 27, 2021. The claim was referred for a NEL redetermination. However, a November 16, 2021 decision from the NEL Clinical Specialist found the worker’s impairment was better than the recognized 23% rating from 2002.

AUTHORITY

Operational Policy Manual

Published

19-02-02 The Goal of ESRTW and the Roles of the Parties

November 30, 2001

ANALYSIS

Worker testimony

The worker briefly reviewed the accident history. He understood he was to perform a new job as an Environmental Assistant for the employer following his injury. The position involved performing environmental audits but he was not trained. He had to figure stuff out on the computer on his own despite having no computer skills. He did not really know what he was doing. There was no classroom training. He was just told to do audits. He recalled the employer offered training in Montreal to other employees but he was not invited.

The worker did not have an assessment of his skills or physical abilities prior to starting the new job. He noted his education included studies in archaeology and anthropology at university. He did not study environmental studies as suggested in an October 23, 2001 memo. He took one course. It was not his major. The worker agreed he might have said he hoped to work in the position. He was excited about it and the training he was supposed to receive (but did not). He confirmed the employer did have an environmental area (it was a real job).

The worker raised concerns about the appropriateness of sitting and using a computer given his injury. He agreed he was fit for suitable modified duties but noted some days were difficult due to the impact of his medication.

The worker noted his supervisor X was in the office with him (he did the job). They did not know each other before. He could ask X questions and they had conversations. However, the worker did not really know what to do in the job. A January 21, 2022 performance review was noted. The worker kind of remembered it. It discussed his typing speed. He typed paperwork. More specifically, he was asked to do mock audits. He questioned X’s ability to assess his job performance given he did not receive any training.

A January 30, 2002 memo was noted. It indicated the worker was asked to address concerns about his performance review with the employer. He was asked if he did so. The worker confirmed he did. He indicated X might have mentioned “this or that” but the worker had given up on the position by that time due to the lack of training. He also questioned why the performance review was provided to the WSIB. He stated it made him look bad because the employer did not provide him the required training.

The worker noted he still received physiotherapy treatment during this period. That was the reason he was late for work on occasion. He also noted he took prescribed medication. At the end of January 2002, the employer removed him from the position. He did not secure similar work elsewhere and did not even put it on his resume.

It was noted the worker was in this new position from November of 2001 to January of 2002. He was asked how the opportunity to work in that area came to be. He indicated a co-worker mentioned it to him and he then discussed it with the employer in late October of 2001. The area / department consisted of only him and X.

The worker could not recall specifics about his first day on the job. He remembered X showed him what audits looked like. He did not recall receiving any type of orientation. The worker was asked what he did in the first month of the job. He stated he learned to use the computer, read audits, and did what he could do. There were issues with the computer freezing.

The worker was asked what he did at work in December of 2001. He indicated it was much of the same. He did a lot of reading (there were manuals and procedural books in the office) and asked X if he had any questions. However, there was no direction. He felt like he was a pain to X, based on his body language.

The worker recalled doing an audit at a site he used to work. He had a checklist and “cheat sheet” with questions to ask. He compared the checklist to the work environment and pointed out what needed to be corrected. He walked through it with one of the guys. He believed it was the Foreman. It was common-sense stuff for good housekeeping based on his experience / knowledge of the tracks.

He believed X was with him but was not 100% sure.

The worker was asked if he advised the WSIB of his concerns about his training. He indicated he did but could not recall whom he spoke with; they did nothing about it. This was also about the time he was pulled from service by the employer.

The worker was asked why he did not pursue this appeal earlier. He noted a number of concerns including his health, the impact it would have on his father’s continued employment (he worked for the same employer), and issues with his union. There was a fire and many cases were lost / fell in-between the cracks. In the end, he gave up on it (lost the wind in his sails).

Lastly, the worker briefly spoke about the non-work-related motor vehicle accidents (MVAs) he had. He also confirmed he has never applied for a CPP disability pension.

Worker representative submission

• The employer did not provide a bona fide job offer. At most, it was a “feeler” to see if they could accommodate the worker.

• There was no assessment / testing / grading of the worker’s knowledge / skills / abilities to determine whether he met any job requirements.

• There was no evidence of a suitable occupation (SO). Only the name of the department the worker was to work in was identified. Auditing was not mentioned.

• There were concerns about the suitability and sustainability of the offer.

• The employer indicated they were going to train the worker but they never did. He was not sent to Montreal to receive training. He was not provided the skills to do a job.

• The employer did not provide specifics in regards to the potential position. It was unclear whether the job was physically suitable given the lack of a physical demands analysis (PDA).

• The performance review did not speak to a specific job. There was no reference to measurements, gaps, or expectations.

• The worker should have been in a labour market re-entry (LMR) plan and received training to secure a proper job. Instead, he received no direction, no targets, and no training. He was then fired.

Employer submission

• The job offered to the worker was Environmental Assistant. It was suitable, sustainable and still exists today.

• The employer was willing to permanently accommodate the worker as outlined in an October 31, 2001 letter.

• The worker heard about the position from a co-worker. He was interested in the role and pursued it with the employer. It was not a “made up” job. An October 23, 2001 memo confirmed this.

• The worker received on-the-job training. This was noted in his testimony. For example, he did a real audit at a location in Y. He understood what to do, which confirmed he had the skills and ability.

• The job met his permanent restrictions.

• Some deficiencies in the worker’s performance were noted. However, the employer continued to support the worker. The reason he was no longer employed had nothing to do with his injury or performance.

• A review of the evidence on file confirmed the worker did not raise concerns about the job or the training he received during the period in question.

Analysis

I find the employer provided suitable work. Specifically, I conclude the employer provided a specific job (Environmental Assistant) that met the requirements of policy 19-02-02. I note the following in arriving at my decision.

Policy 19-02-02 states the goal of the early and safe return to work (ESRTW) process is to return the worker to employment that:

• Is suitable

• Is available, and

• If possible, restores the worker’s earnings.

Suitable work is work that:

• Is within the worker’s functional abilities

• The worker has, or is able to acquire, the necessary skills to perform

• Does not pose a health or safety risk to the worker or co-workers, and

• If possible, restores the worker’s earnings

In this case, an April 27, 2001 memo noted the employer was in touch several times to discuss offering modified work. The worker had a permanent left shoulder impairment. An October 23, 2001 letter from the WSIB to the employer outlined his permanent restrictions. They were:

• Avoid at or above shoulder level work

• Avoid strenuous or repetitive work

An October 23, 2001 memo documented a conversation with the worker. It suggested the worker took environmental studies at university. In his testimony at the hearing, the worker clarified it was only one course. However, he confirmed it (the environmental area) was an area he was interested in working at for the employer. The worker also confirmed he heard about the area from a co-worker and then pursued it with the employer. I am satisfied the employer offered the worker a specific job. The position was Environmental Assistant.

The issue then turns to suitability from both a physical and cognitive perspective. I recognize a PDA is not on file. However, the worker provided details about the job in his testimony. It was essentially an administrative/sedentary position, which required the use of a computer. However, field audits also occurred. I find no evidence to suggest the job duties contravened the worker’s permanent restrictions. In this regard, I place weight on the fact that the worker raised no such concerns with the WSIB during the period in question.

I also find the work was suitable from a cognitive perspective. I am struck by the fact that the worker had a university education. This supports he had the aptitude to be successful in the new role. I note during the hearing, the worker raised concerns about not having computer skills. However, no such concerns were raised with the WSIB during his retraining period. In fact, the worker had many interactions with the WSIB from November of 2001 to January of 2002 and I was unable to locate any evidence to suggest he had any concerns with his training program.

The employer provided an October 31, 2001 letter to the WSIB speaking to the training program. It recognized the worker lacked required computer skills. However, he was provided extensive self-directed Computer Based Training and worked closely with his supervisor, who the worker confirmed was readily available. In my view, the employer provided the worker with the skills and ability to be successful in the role.

My view is supported by the January 21, 2002 performance review. It noted tasks the worker performed as part of his training included working on environmental files, inputting action plans, making internet submissions, and working on the audit-tracking database. In his testimony at the hearing, the worker also confirmed he conducted a field audit. He stated the work was “common sense” given his experience on the tracks. In my view, this suggests he had significant transferable skills that led themselves to being successful in his new role.

In summary, I find the employer offered the worker the role of Environmental Assistant, which was physically suitable given his permanent left shoulder impairment. I find the evidence supports the worker had the ability to perform the job and the employer’s retraining program provided him the necessary skills. In arriving at my conclusion, I place weight on the fact that the worker raised no concerns about his training program during the three months he participated. I also find the evidence supports he received on-the-job training from the employer to acquire the necessary skills to be successful.

CONCLUSION

As outlined in the above decision I conclude the employer offered suitable permanently modified duties. The worker’s objection is denied.

DATED December 21, 2022

S. Vagadia

Appeals Resolution Officer Appeals Services Division