Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | July 2018 | News Worker wins appeal for benefits after second workplace accident Employer provided modified duties after first accident but modifications plus worker's walking boot was 'accident waiting to happen' BY JEFFREY R. SMITH AN ONTARIO worker should not be expected to return to existing modified duties when the modifications led to a sec- ond workplace accident and the employer made no further accommodations, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled. The 66-year-old worker was employed as a customer service representative at a retail store. She had a non-work-related con- dition in her right shoulder that limited her capabilities in some tasks in the office, so the em- ployer provided her with modi- fied duties that fell within her restrictions. On Dec. 23, 2014, the worker was walking down some stairs at her workplace when she missed a step. She was able to hold onto the railing and prevent herself from falling and seemed initially fine, so she continued working for the rest of the day. However, her ankle was bothering her so she visited her family physician six days later. The worker's physician di- agnosed her with a right ankle strain and prescribed a walking aircast boot for her to wear while it healed. The worker successful- ly applied for workers' compen- sation benefits from the Ontario Workplace Safety and Insurance Board (WSIB). The worker returned to work with additional modified du- ties – the modified duties for her shoulder condition along with additional changes — seated rest breaks to avoid prolonged standing and walking, plus no heavy lifting. The employer also provided the worker with a stool for her to use at a cash register. Walking boot led to second accident The worker obtained the walk- ing boot on Jan. 12, 2015, and began wearing it to work. How- ever, four days later, on Jan. 16, she caught the boot on the stool upon which she was sitting at the cash register. She lost her bal- ance and fell off the stool, hitting her right shoulder — the same shoulder with the pre-existing condition. The worker's family physician diagnosed the worker with a right shoulder strain and recom- mended the worker not return to work with the same modified duties, since working as a ca- shier with a stool while wearing the walking boot was "another accident waiting to happen." The physician completed a health care provider's report stating the worker was "not able to return (to work) — difficulty walking with boot for two weeks." The worker stayed off work for the next two weeks and ap- plied for loss-of-earnings ben- efits, but the employer argued it had modified duties the worker was capable of performing. The employer also pointed out that the worker was able to return to work performing the modi- fied duties for a couple of weeks before she actually obtained the walking boot on Jan. 12 and ar- gued this proved it wasn't neces- sary for her to wear it at work. The WSIB denied the worker's claim, as it found the employer had suitable modified duties that the worker was capable of per- forming during the two-weeks she didn't work. An appeals resolution officer upheld the de- nial of the worker's claim, so the worker appealed to the tribunal. Further accommodation needed for return to work The tribunal disagreed with the employer's assertion that it wasn't necessary for the worker to wear the walking boot at work. It found that the walking boot was "a medical device prescribed by her treating physician," which suggested that "it was necessary for her medical recovery." Just because the worker performed modified duties without the walking boot for a time before she was able to get it didn't mean it was unnecessary or she should have been working without it, the tribunal said. The tribunal also found that without further modification of her duties, a similar accident could occur. The worker caught her walking boot on the stool, and even if she was more careful going forward, it didn't reduce the likelihood of it happening again. The boot created an awk- ward situation with the stool and it would be difficult for the worker to avoid it getting caught considering the number of times she would be using the stool over the course of a workday. There- fore, the modified duties already in place were not sufficient to avoid the circumstances of the second workplace accident, the tribunal said. "The worker's compensable right ankle sprain required ac- commodation, in the form of the stool, and required a medical de- vice, the aircast boot. The com- bination of the two created the potential for an accident," said the tribunal. "While that risk was not obvious to the worker, the employer or the worker's treat- ing physician when the worker returned to work on Jan. 13, 2015, it became evident when it materialized on Jan. 16, 2015. It is not reasonable to suggest that the risk would not re-occur since the worker would be more "vigilant," and I see no compel- ling reason to conclude that the worker should have borne the additional risk of further injury resulting from the medical ne- cessity of wearing the aircast boot." The tribunal noted that the worker and the employer didn't discuss the possibility of other modified work as an alternative before the worker applied for loss-of-earnings benefits. Since the existing modified duties was unsafe for the worker, they were unsuitable. As a result, there were no modified duties avail- able while she was wearing the walking boot, said the tribunal. The worker's appeal was al- lowed and the WSIB instructed to provide loss-of-earnings ben- efits for the two weeks she was off work. For more information see: • Decision No. 3411/17, 2018 CarswellOnt 3913 (Ont. Workplace Safety and Insurance Appeals Trib.). Credit: Shutterstock/ravipat

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