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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 2249 16
9/12/2016
B. Doherty

  • Available employment
  • Suitable employment (factors other than physical capability)
  • Board Directives and Guidelines (suitable employment) (health and safety risks)
  • Board Directives and Guidelines (work reintegration principles) (safety)
  • Board Directives and Guidelines (work reintegration principles) (available work) (location)

A food service attendant in a hospital suffered a skin condition in September 2013. The employer appealed a decision of the Appeals Resolution Officer granting the worker LOE benefits from October 8, 2013, to November 25, 2013. During the period in question, the worker was unable to perform hand hygiene safely due to the skin condition, in that she had to avoid use of hand sanitizer and prolonged glove use. The employer offered the worker modified work at home reviewing health and safety materials. The Board found that the worker was incapable of doing any type of work. However, the Vice-Chair found that worker's condition did not preclude performance of any work. The inability to perform hand hygiene did not render the worker totally disabled. Board Operational Policy Manual, Document No. 19-02-01, on work reintegration principles, concepts and definitions, provides that suitable work means work that is safe, productive and consistent with the worker's functional abilities. In determining whether work is safe, the Board considers whether the work poses a health and safety risk to the worker, co-workers or third parties, and whether the work is performed at a work site that is covered by the Occupational Health and Safety Act (OHSA). OHSA does not apply to work performed by an owner in a private residence. The modified work offered by the employer was within the worker's functional abilities. It was productive, as workers were required to complete mandatory training requirements. It did not pose a health and safety risk. The fact that the modified work was to be performed at a work site not covered by OHSA did not mean that it was not safe. The Vice-Chair interpreted the policy as requiring that the work be safe and that, in considering the question of whether the work is safe, the fact that it is to be performed at a work site not covered by OHSA is something to be considered but is not determinative. In this case, the Vice-Chair found that the modified work to be performed in the worker's home was safe within the meaning of Board policy. Document No. 19-02-01 defines available work as work that exists with the injury at the pre-injury work site or at a comparable work site arranged by the employer. In considering whether the work offered by the employer was at a comparable work site, the Vice-Chair noted that a private home is not similar to a hospital but also noted that the worker could not perform the work at the hospital due to her hand condition. The employer was not offered work at home in an effort to frustrate the worker's return to work. Considering the worker's restrictions and the broader guiding principles of the Board policy, the Vice-Chair found that the modified work offered by the employer was available. The modified work offered by the employer was suitable and available. The worker was not entitled to LOE benefits during the period in question. The appeal was allowed.