Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Injured worker wins 14-year appeals battle over ability to do recommended job Workers' compensation board and tribunal determined suitability of job for injured worker without finding out if required modifications could actually be done BY JEFFREY R. SMITH A BRITISH COLUMBIA worker with a partial disability from a workplace accident has won a long battle in getting an assess- ment that he was suitable for a particular position overturned. Douglas Amos was a truck driver in the logging industry in British Columbia. He started in 1976 and mostly worked as an off- highway driver in remote areas and isolated logging roads in the province. On Oct. 17, 1997, a falling log hit Amos from above, knocking him onto his face and chest. e accident resulted in a concussion and several compression fractures of his ver- tebrae. Amos sought compensation for his injuries and the B.C. Workers' Compensa- tion Board (WCB) awarded him wage loss benefits and a permanent partial disability award. Because of his partial disability, Amos wasn't able to return to work as a truck driv- er. e WCB put him on a vocational reha- bilitation plan and referred him to an occu- pational therapist for a functional capacity evaluation (FCE), which would determine his abilities to return to work. On Jan. 31, 2001, the assessment determined several potential jobs Amos could do, including that of a dispatcher. e evaluation indicated that in the po- sition of dispatcher, Amos should have a hands-free telephone to "minimize the sit- ting component of this occupation" and al- low him to stand and move around as needed. Another occupational therapist evaluated Amos and the resulting report also listed re- strictions on his ability to sit, including one hour at a time and the use of a headset. Worker disagreed with assessment of suitable job Amos advised that the positions on his evaluation were not suitable as he couldn't meet their physical demands, they weren't reasonably available to him and they paid significantly less than what he had been making as a truck driver. However, the WCB disagreed and his wage-loss benefits were discontinued after a 12-week job search period during which Amos applied for at least five jobs per day without success. In November 2001, Amos was sent a letter that stated he "possessed sufficient skills to ac- cess physically suitable employment within the next three to five years." e WCB's disability awards department reassessed his permanent partial disability pension and in January 2004 it slightly in- creased his pension. It also referred to the November 2001 letter regarding his em- ployability. Amos appealed this decision but a review officer agreed his skills were transferable to that of a dispatcher position and such jobs were reasonably available. Amos appealed again, this time to the workers' compensa- tion appeals tribunal. By early 2005, Amos was still unable to find a dispatcher position so he sent ques- tionnaires to several employers who had posted such positions about the require- ments of the job. ose who returned the questionnaire indicated the job involved sit- ting for at least seven hours per day at a desk and there was no way of modifying this oth- er than taking breaks. Most also disagreed that giving a dispatcher a wireless headset would reduce the amount of time sitting to perform the duties. Amos also underwent a sitting tolerance assessment by a physiotherapist, which concluded he could sit in a reclined posi- tion for up to two hours but not an upright position for more than seven minutes. It also determined he would need to sit in an adjustable reclining chair at work. In March 2009, Amos advised the WCB of his research into the requirements of the dispatcher position and the fact many required ten years of experience and ex- tensive knowledge of highway regulations, geographic knowledge, familiarity with bills of lading and operation of different high- way vehicles, as well as particular computer skills which he didn't have. However, the tri- bunal upheld the finding that the position of dispatcher was physically suitable and rea- sonably available to him over the long term. Amos requested a reconsideration and a WCB reconsideration panel confirmed the decision. Amos then brought the issue to the B.C. Supreme Court. e court noted that "a reasonably avail- able job is one that is available to the claim- ant; not just any job position in which there are vacancies." In the assessment of Amos, "relevant characterizations" such as age, lack of experience and functional limita- tions were not taken into account, said the court. e court found there were generaliza- tions used about dispatch jobs and their availability and little consideration given to whether Amos, with his particular limita- tions, was likely to be hired. "Reference is made to statistics and market research. ere is simply no con- sideration of the competitiveness or em- ployability of an individual who requires modifications to the dispatch position," said the court. e court also found the assessment and the reviews of the earlier decisions by sub- sequent panels and tribunals relied "solely on the opinion" of the original vocational rehabilitation assessor, despite Amos' re- search into why he couldn't get a dispatcher job. e original assessment determined Amos could perform the dispatcher posi- tion with certain modifications, but didn't have any proof those modifications could be done. is assessment lacking in factual basis was perpetrated at each level of appeal in a "circular pattern" that "permeates the entire matter from this time forward," said the court. e court found the original decision concerning Amos' employability and the related entitlement to loss-of-earning ben- efits was "patently unreasonably because of a failure by the tribunal to apply board policies and consider the merits of the case within those policies." e decision was set aside and the issue of Amos' pension entitle- ment was referred to a different tribunal for a new hearing. For more information see: • Amos v. Workers' Compensation Appeal Tribunal, 2015 CarswellBC 718 (B.C. S.C.). The worker was unable to find a dispatcher position so he sent questionnaires to several employers who had posted such positions about the requirements of the job and possible modifications.

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