Highlights of Noteworthy Decisions

Decision 215 17
B. Kalvin
  • Suitable employment (factors other than physical capability) (shift change)

The worker suffered a shoulder injury in January 2010. The employer appealed a decision of the Appeals Resolution Officer granting the worker LOE benefits from March 2010 to April 2010 and granting the worker entitlement for a Bankart lesion.

The employer operated 24 hours per day, using three shifts. The terms of the worker's employment were that she was required to work on any shift. However, she requested the midnight shift and had been working on that shift since 2007. After the accident, the employer offered modified work on the day shift. The worker advised that she could not work the day shift due to child care obligations. Later, the worker advised that another reason she could not work the day shift was because she was taking courses during the day.
Decision No. 137/11 referred to a dichotomy in Tribunal case law regarding whether a worker is required to accept modified work on a different shift. That decision sided with the case finding that a change in work schedule is not relevant when considering suitability of modified work.
The Vice-Chair agreed with the general principle that a modified job should not be considered unsuitable simply because it is offered in a different time slot than the pre-injury job. However, there can be exceptions to this general principle in certain limited circumstances, one of which exceptions will occur when the employer offers a different time slot because of animus to the worker rather than because of unavailability in the pre-accident time slot.
In this case, there was evidence indicating that the employer could have easily accommodated the worker's request to stay on the midnight shift. There was also evidence that the employer developed a hostile approach to the worker's claim and request for accommodation. The Vice-Chair concluded that the modified work should not be regarded as suitable because the shift change was motivated by hostility to the worker rather than legitimate operational requirements. The worker was entitled to LOE benefits during the period in question.
The Vice-Chair also found that the Bankart lesion was related to the compensable accident.
The appeal was allowed.