Highlights of Noteworthy Decisions

Decision 1672 18
D. Revington
  • Availability for employment (transportation to work)

The worker suffered a shoulder injury on October 14, 2015. The employer appealed a decision of the Appeals Resolution Officer granting the worker full LOE benefits from October 23, 2015 to November 3, 2015.

The employer offered modified work. The worker refused the work on the basis that her injury made it too difficult for her to drive to work. The worker lived 125 kilometres from work. She drove to work in her standard transmission car.
The Vice-Chair referred to the Board's Administrative Practice document on Return to Work Considerations. This document was not Board policy but the Vice-Chair found it relevant and helpful. Regarding travel to and from work, the document states that if a worker is unable to get to and from work safely and within functional abilities, return to work may not be appropriate. Decision-makers shoulder consider factors including the worker's normal method of transportation, whether the worker can still use that method considering the area of injury, whether alternative methods of travel are available and whether such alternative methods unreasonably impact the worker's commute to work.
The Vice-Chair also reviewed Tribunal case law and found that it was consistent with the tests set out in the Board document. Recent Tribunal decisions have considered whether there is medical opinion supporting the worker's inability to drive (such as safety risk due to medication or risk of further injury), whether there are alternative means of transportation, the length of the commute, ability to rest during the drive and whether the employer offered to accommodate the worker's driving difficulties.
The Vice-Chair concluded that it was reasonable for the worker not to travel for the modified work.
The worker ordinarily travelled 125 kilometres to get to work. The worker's chiropractor was of the opinion that the worker was not capable of driving that distance with manual transmission. There was no reasonable alternative for getting to work; there was no opportunity to car pool, public transportation would take over three hours each way, it would not be reasonable for the worker to pay for the cost of a taxi for that distance and the employer was not willing to pay for the taxi or otherwise accommodate the worker's travel.
The employer questioned whether the worker was unable to drive, as the worker's doctor had not suspended the driving licence of the worker under the Highway Traffic Act. The Vice-Chair found that it was not necessary for the worker's licence to be suspended in order to make a finding that the worker was restricted from driving.
The worker was entitled to full LOE benefits during the period in question. The appeal was dismissed.