Highlights of Noteworthy Decisions

Decision 998 21
04/10/2021
L. Petrykowski - M. Trudeau - M. Ferrari
  • Availability for employment (relocation)
  • Suitable employment (modified duties)

The worker, a labourer, injured his low back and left hip in June 2018. The employer provided modified work until December 2018, when the project at the work-site was completed. The employer then offered the worker modified work at its offices, which were 17 hours away from the work-site and the worker's residence, or alternate modified work of a home-study program. The employer appealed a decision of the Appeals Resolution Officer that the modified work was not suitable and the worker was therefore entitled to LOE benefits from December 2018 to March 2019.

The appeal was dismissed.
Neither the home-study nor the modified work at the employer's office could be reasonably viewed as suitable work within the meaning of OPM Document No. 19-02-01, Work Reintegration Principles, Concepts, and Definitions. Assigning home study materials to a general labourer at his home without direct supervision for an indefinite duration was not productive or sustainable work. Moreover, there was no evidence that the location was safe. One important consideration in the policy as to whether modified work activities are safe is whether the work is being performed at a site covered by either the Occupational Health and Safety Act or the Canada Labour Code. The worker's residence was not a site covered by either legislation.
The work at the employer's offices, 17 hours away from the work-site, was not suitable. There is no requirement in the law or Board policy for an injured worker to relocate, even temporarily, an exorbitant distance to perform modified work activities. The worker had never established a pattern of employment with the employer where he would work at such a distance from his residence. The employer did not provide specific details such as how the worker would travel to the workplace, where he would live, how he would return home on his days off, and how he would be compensated for the travel. The proposed work would also have interfered with the specialized health care he was receiving near his home.