Canadian Safety Reporter - sample

3 Canadian HR Reporter, a Thomson Reuters business 2018 News | November 2018 | CSR Worker deemed unemployable, then given a suitable occupation Tribunal finds no reason to take away full loss of earnings benefits when there was no significant change in worker's condition BY JEFFREY R. SMITH AN ONTARIO worker has won a battle for permanent loss of earnings benefits after a decision that he was unemployable was rescinded and he was assigned a suitable occupation despite a lack of any change in his medical condition. The worker was employed as a pipefitter in Ontario. On Dec. 14, 2005, a chair in which the worker — who was 53 years old at the time — was sitting at work collapsed and he fell back, injur- ing his left shoulder. The injury was a partial thickness tear of a tendon and mild joint degenera- tion was found, and the worker also developed tendinitis and impingement in his right shoul- der. He was granted a 15-per- cent non-economic loss award by the Ontario Workplace Safety and Insurance Board (WSIB). The worker was unable to return to his job as a pipefitter because of his permanent physi- cal limitations in both shoulders. He also suffered from carpal tunnel syndrome — contribut- ing to numbness in his hands that caused him to occasionally drop things — a hernia, and knee pain due to 36 years of "strenu- ous work with the same em- ployer." The worker had to take pain medication that affected his concentration and focus. The WSIB determined a suitable employment or busi- ness (SEB) for him would be that of purchasing clerk. How- ever, the worker was evaluated with a labour market re-entry psycho-vocational report in May 2008 that indicated while the demands of a purchasing clerk position outlined in the National Occupational Hand- book — a sitting body position most of the time and little need for limb co-ordination — closely matched the worker's physical abilities after his pending sur- gery was completed, the worker didn't have the physical ability to complete the computer train- ing and other training required to work in the occupation. The report also noted employers in that industry indicated receiv- ing and storing stock was usu- ally required, which the worker couldn't do because of his shoul- der limitations. The May 2008 report con- cluded that there was no viable SEB for the worker and he was entitled to full loss of earning benefits to the age of 65. The WSIB agreed, noting the work- er's advanced age — now 56 — pending surgery, and limited capacity for learning new skills as reasons to provide the worker with benefits until the age of 65. By 2010, the worker under- went surgery for his carpal tunnel syndrome and had less numbness in his hands, but re- ported that his overall condi- tion hadn't improved. He un- derwent a functional capacity evaluation in June 2010, which he was unable to complete due to discomfort in his shoulders. He also had difficulty kneel- ing, working with his hands at head level, flexing his trunk, or sustaining a crouch. The evalu- ation report also noted physi- ological signs of stress. WSIB assigns new suitable occupation in retail sales However, the WSIB found the worker was capable of perform- ing the duties of a retail sales clerk and named that position as an SEB. As a result, the worker was no longer entitled to ongoing full loss of earnings benefits. The worker appealed, but an appeals resolution officer confirmed the WSIB's determination of retail sales clerk as an SEB. The worker, now 63, appealed this decision, arguing the SEB of retail sales clerk was not only unsuitable — due to his physical limitations and lack of any ex- perience working with the gen- eral public — but also that he was "competitively unemployable" because of his inability to com- plete training and his relatively advanced age. The Ontario Workplace Safe- ty and Appeals Tribunal referred to the WSIB operating policy document dealing with loss of No material change > pg. 7 Credit: Shutterstock/GTS Productions

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