WSIAT Decision No. 1665/23
This Tribunal decision granted an employer’s appeal, ultimately reversing a 2021 ARO decision which had granted entitlement to full loss of earnings (LOE) benefits to age 65. The principal issue in this appeal was whether the seriousness of the worker’s workplace injury completely prevented them from returning to any work, including the alternate job offered by the employer.
By way of brief background, this worker was involved in a legitimate workplace incident in 2011 which resulted in a right shoulder injury. The worker eventually required surgery and was subsequently granted a 1% non-economic loss (NEL) benefit.
It was accepted that the worker was not functionally able to return to the essential duties of her pre-injury job. Following psycho-vocational testing, the employer identified an alternate position which was accepted as a Suitable Occupation. The worker eventually and briefly participated in a graduated return to work before claiming total disability and ceasing employment entirely, informing the WSIB that she “…did not want to go back”. The worker also declined to attend a Functional Work Capacities Assessment (FWCA) which would have allowed the opportunity to discuss any concerns related to the new position. Benefits were reduced for non-cooperation and then terminated when the RTW plan was closed as the worker would not have experienced any wage loss in her new role.
The worker was later granted psychotraumatic disability benefits, an additional NEL benefit and full LOE benefits which were locked-in to age 65. The employer appealed this decision.
As noted, the Tribunal granted the employers appeal, overturning the previously allowed full LOE benefits to age 65. In determining that the worker was not entitled to LOE benefits following the employer’s offer of a suitable alternate position, the Tribunal found that the worker was not totally disabled and had effectively retired, making themselves unavailable for suitable modified work with their employer. This was found to be a personal choice which precluded entitlement to LOE benefits.
Additionally, the Tribunal noted that a worker may be denied entitlement to LOE benefits if they fail to disclose to their employer concerns related to an offer of modified duties, as this would preclude the employer from properly being able to assess and amend their offer, if necessary. This analysis is consistent with the process and legal determinations pursuant to the Duty to Accommodate under the Human Rights Code.
Finally, the Tribunal noted that when a worker is not totally unemployable (i.e. has capacity to return to work), a lack of motivation to return to gainful employment may be found to be prejudicial to the worker’s entitlement to LOE benefits. However, it was noted that a lack of motivation should not prejudice a worker who is genuinely unemployable.
This decision reaffirms the importance for employers to meaningfully engage in the return to work process and explore various options for suitable work in their workplaces. Notably, this decision reiterates the fact that the return to work process is a two-way street which requires active and meaningful participation from both workplace parties, and that failure of either party to engage in said process may result in an adverse decision. This decision is supportive of the reciprocal RTW obligations are set out in S.40 of the Workplace Safety and Insurance Act.
