Canadian Safety Reporter - sample

March 2018

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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2 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | March 2018 | News a lower back strain. A few months after the acci- dent, in January 2009, the work- er underwent an MRI which revealed degenerative changes throughout the lumbar spine and mild bulging in a few discs. The worker's back pain didn't get any better and he remained unable to work as a farm labour- er, so he was referred for a Re- gional Evaluation Centre (REC) assessment in November 2009. The REC report indicated that the worker had a history of low back pain and had permanent restrictions that required him to avoid prolonged and repetitive bending, low back twisting and stooping, and moderate to heavy lifting. The report concluded that these restrictions made it unlikely he would be able to re- turn to work as a farm labourer. The Ontario Workplace Safe- ty and Insurance Board (WSIB) referred the worker for a labour market re-entry assessment and transferable skills analysis in February 2010. The skills analy- sis determined that the worker was capable of working with and repairing machinery, operating vehicles, woodworking, working with plants and animals, and fol- lowing instructions. The worker expressed interest in jobs such as small engine repair, auto me- chanics, nuclear energy, carpen- try, electricity, and plumbing. Based on the worker's skills and interests, the assessment identified six suitable employ- ment alternatives: three involv- ing small machinery, two in customer service, and an egg processor/grader. However, the worker had relatively low cog- nitive abilities that didn't reflect his grade 12 education, so this placed some limits on his op- tions. After additional assess- ment, it was determined suitable occupations were small motor repairer, tool room attendant/ automotive parts person, jew- eler apprentice, and hotel clerk. The WSIB used the assess- ment results to determine a la- bour market re-entry plan for the worker. The plan determined that a customer service clerk was a suitable occupation the worker could perform within his medi- cal restrictions and his cognitive abilities. By October 2010, the worker completed his training and was considered capable of earning $10.25 per hour over a 40-hour work week. The WSIB ended his workers' compensa- tion benefits and granted the worker partial loss-of-earnings benefits to make up the differ- ence in the pay he received as a farm labourer, as well as a non- economic loss award of 17 per cent for his back impairment. Worker had difficulty with work placement The worker had a work place- ment as a customer service rep- resentative in a farm implements store as part of his labour market re-entry plan. He experienced some difficulties and was only able to work between four and five hours a day instead of the expected eight hours. He had difficulty reading shelf labels be- cause of his low cognitive ability and store management told him they wouldn't hire any perma- nent employee who wasn't able to lift heavy objects such as feed bags and equipment. The worker challenged the WSIB's determination of a suit- able occupation, arguing that he functioned below the grade 12 level and had spent most of his working life in outdoor farming work. This would make it dif- ficult to transition to the type of work and work culture as- sociated with the occupation of customer service clerk. He also argued that his physical restric- tions prevented him from being able to work 40 hours a week. An appeals resolution officer upheld the WSIB's determina- tion, finding that customer service representative was an achievable suitable occupation with addi- tional training and the worker was capable of working 40 hours a week. The worker appealed to the Ontario Workplace Safety and In- surance Appeals Tribunal. The tribunal noted that WSIB policy stipulates that a suit- able employment or business is "within the worker's functional abilities and is achievable af- ter labour market re-entry." It found that the worker's educa- tion, experience, and cognitive level "presents very much like the farm labourer he was." Even without his physical restrictions, the worker would have difficulty in a retail setting and the WSIB's retraining efforts weren't suc- cessful, said the tribunal. The tribunal found that the labour market re-entry plan wasn't adequate to prepare the worker to be a customer service representative and it was unlike- ly to be successful anyway be- cause of the worker's functional abilities even after the plan. As a result, the tribunal agreed with the worker that customer ser- vice representative wasn't suit- able employment for the worker. The tribunal noted that the worker was in pain most of the time and took a number of medi- cations. In addition, the 17-per- cent non-economic loss award demonstrated "a level of impair- ment which is not insignificant," and the worker was unable to work eight-hour days during his work placement due to his pain. The tribunal determined the worker wasn't capable of work- ing 40 hours a week due to his low back condition. Since he was able to work only five hours a day during his work placement, the tribunal found 25 hours a week was a reasonable assessment of what the worker could do. The tribunal granted the worker's appeal and overturned the decisions that customer ser- vice representative was a suit- able occupation and was capable of working 40 hours a week. The WSIB was ordered to adjust the loss-of-earnings benefits in ac- cordance with a 25-hour work week instead of 40 and re-assess the wage to reflect the minimum wage at the time benefits were terminated, in the absence of a suitable occupation. For more information see: • Decision No. 551/16, 2017 CarswellOnt 18469 (Ont. Workplace Safety and Appeals Trib.). Suitable < pg. 1 Worker couldn't work more than 5 hours a day in placement Credit: Shutterstock/Have a nice day Photo

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