APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240004
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: VIDEOCONFERENCE – January 9, 2024, at 9 a.m.
HEARD by: J.L. Hughson, appeals resolution officer
ADDITIONAL ATTENDEES: Observer wsib observer
DATED: JANUARY 17, 2024
ISSUES
The worker objects to the Return-to-Work Specialist’s (RTWS) decision dated February 13, 2023, which determined the modified duties of Trim (Potato Inspector) were suitable.
BACKGROUND
On July 31, 2021, this Warehouse Technician jumped out of the way of an incoming forklift, twisting his right knee as he landed when falling backward. On the following day, the worker’s right knee gave out after sidestepping for about 40 feet between pallets. He did not initially lose time from work, and was accommodated on seated modified duties. In their decision dated August 27, 2021, the Eligibility Adjudicator (EA) allowed the worker’s claim for initial entitlement to benefits for a right knee strain.
The worker began physiotherapy treatment on August 13, 2021. In MRI results dated October 2, 2021, he was noted to have a bucket-handle type tear of the medial meniscus. In their decision dated October 4, 2021, the CM allowed entitlement to benefits for a right medial meniscus tear. The worker had surgery on October 27, 2021, and was accommodated with modified duties at home after the surgery. He resumed treatment on December 1, 2021, and returned to modified duties in the workplace, at reduced hours, on or around December 18, 2021.
Further MRI results, dated January 8, 2022, showed the worker’s right knee had a tear through the remnant of the posterior horn of the medial meniscus. They had another right knee arthroscopy on March 10, 2022.
The CM determined in their decision of August 3, 2022, that the worker had reached maximum medical recovery (MMR) with a permanent impairment as of July 12, 2022. The CM accepted permanent restrictions in their decision letter. On August 16, 2022, the non-economic loss (NEL) Clinical Specialist awarded the worker with a 4% NEL rating in recognition of their right knee permanent impairment.
On January 9, 2023, the worker was offered the position of Trim (Potato Inspector). There was a RTW meeting on January 13, 2023, to review the modified job. In their decision dated February 13, 2023, the RTWS determined the position of Trim (Potato Inspector) was suitable with accommodations.
The worker objects to the decision dated February 13, 2023, and this issue is now before me.
AUTHORITY
Operational Policy Manual
Published
19-02-07 RTW Overview and Key Concepts
April 9, 2021
ANALYSIS
I find the job duties of Trim (Potato Inspector) are not suitable. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
In their submission at the time of the oral hearing, the worker’s representative (WR) contended that the modified duties were not suitable or safe, because the worker would not be able to safely use a cane to access their workstation due to water, starch, oil, and other materials on the floor.
In their submission at the time of the oral hearing, the employer’s representative (ER) contended that the modified duties were suitable, as the RTWS went to the workplace in person to evaluate the modified work and determined it was suitable, and there is no evidence to support the modified work was not safe.
Worker’s testimony
The worker testified to the following related to the issue before me:
- In the RTW meeting on January 13, 2023, the worker stated one of the Joint Health and Safety Committee representatives said the plant had recently been meticulously cleaned, and, as a result, the conditions in the plant were not typical.
- The worker said that the conditions in the plant typically involved a mixture of water and starch, or a mixture of water and oil, on the floor in various areas. This is because there were many sinks and washing stations that would overflow and spill out over walking areas. There are air and water hoses which are frequently placed across walkways, as well as garbage. Oil from the fryers can come out on the walkway, and oil is then tracked throughout the facility. Absorbent powder and rags are used to collect oil that is spilled, which can be a tripping hazard. Additionally, when the areas are cleaned, or flooded, this will lift oil off of the fryers, and carry that along to the drains. One of the drains is at the base of the stairs that the worker would have used to access their modified duties in the trim area. This pulls oil and grease over the drain, causing it to be tracked by boots.
- In regard to the RTW plan, the worker estimated that there was a distance of about 100 to 120 metres from his car to the locker room, where he would change and access a four-pronged cane. Then, he would go to the clean room, followed by walking down a series of aisles through the production area to the trim area. He would exchange his four-pronged cane for a single-point cane, which would be in a locker waiting for him, before going up to the trim area. This was a distance of approximately 50 to 75 metres from the locker room. Now using a single-point cane, the worker would go up seven steps, which are made of heavy plastic, to access a platform with steel flooring that has holes in it. There are also anti-fatigue mats which have holes in them.
- Once on the platform, the worker had a chair to sit on while working. The job was to visually inspect the potatoes as they came down the line and remove the ones that do not meet certain criteria. The job would require him to remove potatoes that have pieces that have gone bad, cut the pieces off with a knife, and toss the potato back.
- The potatoes have come from the wash station, so water is coming off of them as they move through the work area, causing the work area to be wet.
- The worker stated he raised concerns about the safety of the job duties in meetings, and that the Health and Safety representative did, too. The worker stated that there were a lot of things about the modified duties that were not addressed, including who would assist him in the event of an emergency; and, whether or not accessing the bathroom would exceed his walking restriction and if he would be able to sit down on the way there if needed. He noted that walking takes him more time than other people, especially if he is navigating an area that is wet or oily, and so he would take more time on his breaks than someone else would.
- The worker stated he had concerns with the canes to be used, noting he has used a great number of different canes over the last 2.5 years, including four-prong, non-slip cane tips, etc. In his experience, and in the opinion of his doctor, there are no safe cane tips for an area that is covered in grease, oil, water, and starch.
Suitability of Trim (Potato Inspector)
Policy 19-02-07, RTW Overview and Key Concepts, states, in part,
Suitable work means post-injury work that is safe, productive, consistent with the worker's functional abilities, and that restores the worker's pre-injury earnings, to the greatest extent possible.
Level of impairment
In the CM’s decision dated August 3, 2022, they accepted the following permanent restrictions and abilities:
- Walking up to 200 metres, on an occasional basis
- Standing up to 15 minutes at a time, on an occasional basis
- Stair climbing up to 10 steps, self-paced
- No lifting floor to waist
- Lifting waist to above shoulder up to 22 pounds
- Pushing/pulling up to 22 pounds of force
- No ladder climbing
- Able to drive or take public transit
- Take micro breaks or make position changes to manage symptoms
- Use of mobility gait aid, as needed, for ambulation
Modified duties
In their letter dated January 9, 2023, the employer offered the modified job of Trim (Potato Inspector). In this offer, they referenced the outcome of the worker’s Functional Capacity Evaluation (FCE), dated September 27, 2022, which is not on file. There is a Physical Demands Analysis (PDA) of the position, dated April 11, 2022. The PDA is consistent with the worker’s testimony, stating in part that the job duties include looking for defective, oversized, or too-small potatoes, and using a paring knife to cut spots off the surface of the potatoes that do not meet the employer’s standards. The PDA states that the job duties require walking on multiple surfaces, including concrete, anti-fatigue matting, metal-ridge flooring, and stairs. The PDA confirms that environmental conditions include slippery surfaces.
Although a RTW meeting took place on January 13, 2023, as documented in Memo #A0066, as well as in the RTWS’ decision dated February 13, 2023, there is no memo on file from the RTW meeting. Further, there is no indication that the worker’s concerns with using a cane in the slippery conditions of their workplace were addressed. In the RTWS’ decision of February 13, 2023, they reference that the employer had identified single point and four-prong canes that would be appropriate for use in the facility, as they were metal, as well as a plan for where the worker would use each. In their testimony, the worker stated that they never saw those canes and was never given a make or model of them. They also said that the facility had been meticulously cleaned prior to the RTWS’ in-person assessment of the work area and modified duties on January 13, 2023, indicating that the work area presented as cleaner and less slippery than is typical. I accept this is the case, given the PDA confirms the job requires working in an environment that has slippery surfaces.
In their submission at the time of the hearing, the ER stated that the RTWS’ professional opinion on the suitability of the modified duties should be weighed heavily, given the RTWS did an in-person review of the job to confirm it was suitable. While I acknowledge this, I accept the worker’s statement that the work areas had just been cleaned at the time of the RTW meeting, and, as a result, there were fewer hazards visible at the time. Additionally, the RTWS’ decision dated February 13, 2023, does not address the issue of the slippery surfaces the worker would have to walk across in order to access his workstation. At the workstation, the flooring of the platform is made of perforated metal, and there are anti-fatigue mats with holes in them.
The worker provided four documents to file on January 12, 2023, which talk about how to use canes safely. These documents consistently recommend that when using a cane, the user should avoid slippery or uneven surfaces, as well as other clutter on the floor. In their report dated July 5, 2023, the worker’s family doctor commented on the suitability of the modified work, noting the same hazards referenced by the worker in their testimony. Although the family doctor has not personally reviewed the modified work, I accept their professional opinion when they say that canes typically should not be used on wet surfaces.
Policy 19-02-07, RTW Overview and Key Concepts, states, in part, that when determining whether the modified duties are safe, decision-makers must ensure that
The work does not pose a health or safety risk to the worker (e.g., should not cause re-injury or a new injury either physically or psychologically), to co-workers, or to third parties.
I find the modified duties of Trim (Potato Inspector) are not safe, as they would pose a health or safety risk to the worker. The worker has a compensable permanent restriction to use a walking aid as needed. In order to get to their workstation, the worker must travel over slippery surfaces. At his workstation, they must go up seven steps, which can be wet, and walk on a platform with wet perforated metal flooring that has anti-fatigue mats with holes in them. Using a cane on these surfaces could result in the cane slipping or catching, which could cause the worker to fall and hurt themself further.
As the modified duties are not safe, I find that the job duties of Trim (Potato Inspector) are not suitable as required in policy 19-02-07.
CONCLUSION
The worker’s objection is allowed.
The job duties of Trim (Potato Inspector) are not suitable.
DATED January 17, 2024
J.L. Hughson Appeals Resolution Officer Appeals Services Division