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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 3227 16
1/18/2017
C. Dempsey - M. Christie - K. Hoskin

  • Availability for employment (medical authorization)
  • Suitable employment (factors other than physical capability) (shift change)
  • Medical report (Board forms)

A letter carrier suffered a leg injury on August 27, 2008. He returned to modified work performing sorting duties on September 22, 2008. On September 25, the employer advised that it could no longer accommodate the worker with modified duties during the day, and that the remainder of the modified duties would be completed on the midnight shift (midnight to 4 am) starting September 29, 2008. The worker did not report for modified work on the midnight shift. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits from September 29 to November 28, 2008. There was a functional abilities form (FAF) completed by the worker's doctor on September 19. It did not identify any specific or functional restrictions but did comment that the worker should work four hours per day from 8 am to noon. The Panel found that the FAF was inadequate to support the worker's claim that he was unable to work the midnight shift. The purpose of the FAF is not for the worker to use as a free pass to obtain preferred shifts. Rather, it is to be used in conjunction with other medical reports in order to provide specifics of a worker's functional limitations, to identify specific restrictions and to provide comment when other restrictions are identified. There was no rationale in the FAF for the restriction to morning shifts. While a worker, generally, is not be found to be unco-operative for reasonably relying on recommendations of a treating doctor relating to authorization to be off work for a brief period after a compensable injury, such recommendations must be provided on an objective basis by a well-informed health care practitioner. A medical note will not suffice, nor will an FAF that contains no substantiation for an atypical restriction. The Panel concluded that the worker failed to co-operate by refusing to work the midnight shift and failing to communicate with the employer to provide an explanation for his absence. The employer offered suitable modified and available work. The worker was not entitled to LOE benefits from September 29 to November 28. The appeal was dismissed.