Highlights of Noteworthy Decisions

Decision 40 19
Z. Onen
  • Loss of earnings {LOE} (level of benefits)
  • Suitable employment (sustainability)

The worker was assaulted while employed in fast food delivery. Following a FRP assessment the worker was diagnosed with mechanical low back pain as well as CPD for which he was awarded a 32% NEL award. In this appeal the worker was seeking full LOE entitlement for two periods when the worker was put on modified duties.

OPM Document No. 19-02-01 stated that a modified job offered by the employer should be safe, productive and consistent with the worker's functional abilities as well as approximating the pre-injury earnings.
Past decisions of the Tribunal have considered what constitutes sustainable and productive employment. These decisions indicate that particularly where the modifications are intended to be permanent, the jobs assigned to the worker should have an economic benefit for the employer in that the worker's production reasonably contributes to the employer's services or products. Decision No. 1895/08 found that there was insufficient evidence to show that modifications that restricted the worker's work tasks to labelling were provided enough work that the employer would be likely to maintain this job on a full time basis in future. The job was not found to be economically sustainable in the long term. Decision No. 949/99 found that a modified job that restricted a worker to dusting from the waist to the shoulders had such minimal expectations that it was unlikely to be sustainable.
In this appeal the Vice Chair found that the pre-accident duties were beyond the worker's physical restrictions.
The only way the employer would have been able to modify the duties was to place the worker on a less busy shift where less deliveries were made and the size of the delivery would have to be restricted.
The worker was paid $6.50 /hr with the majority of his earnings being tips. If the worker was to work during the less busy shifts and thereby make fewer and lighter deliveries, he would therefore would not likely approximate his pre-injury earnings. Further these modifications would make the worker's employment less productive to the employer. As such the modified duties did not meet the requirements of Board policy as they were not within the compensable restrictions , were not productive and would not like approximate the pre-injury earnings.
The worker was granted full LOE for the two time periods referred to above.