Highlights of Noteworthy Decisions

Decision 255 22
K. Jacques(PT)
  • Continuing entitlement
  • Loss of earnings {LOE} (cooperation)
  • Psychotraumatic disability
  • Permanent impairment {NEL}
  • Suitable employment (suitable for worker's capabilities)
  • Suitable employment (sustainability)
  • Loss of earnings {LOE} (eligibility) (impairment)
  • Loss of earnings {LOE} (mitigation)
  • Suitable employment (modified duties)

In this appeal, the Vice-Chair determined that the modified work provided by the employer was not suitable. As a result, the worker was entitled to LOE benefits from April 5, 2019. In addition, it was concluded that the worker had a permanent impairment due to psychotraumatic disability and was entitled to a NEL assessment.

The Vice-Chair noted that the worker was assigned work where he was asked to "look busy." The worker testified that he was told to get up and do "safety checks" just to be seen on the security cameras. It was stated that it was not a task that anyone else would have been assigned to do had the worker not been doing it as part of his accommodation. The worker was also instructed to keep a stack of random papers on the desk in the first aid room incase the supervisor walked by.
The Vice-Chair stipulated that in order to find that an offer of work is productive, it must provide "an objective benefit to the employer's business." In the worker's case, walking around to be seen on security cameras, and keeping a deceptive stack of papers on his desk were not considered to be objectively beneficial to the employer's business. In addition, it was pointed out that this can, as it did in this situation, feel demoralizing to the worker. As noted in Decision No. 642/21, an employer can bundle tasks that would not normally be a regular available job, and this is particularly true when the accommodations are for a short term gradual return to work transition. However, make-work tasks with no objective benefit to the employer's business are not suitable modified duties (see Decisions No. 1180/14 and 998/21).
Furthermore, in early April 2019, the employer wanted to move the worker to warehouse duties. The employer wanted the worker to operate a forklift and move the same kind of machines that had "almost crushed him to death". The worker advised the employer that this was not a good plan and that he did not feel safe. The employer told him that this was all that they had for him. The Vice-Chair stated that expecting the worker to work with the very equipment that he had such a severe accident with was not psychologically safe for the worker. The worker had developed PTSD due to that accident. He had expressed to his employer that he could not do it; however, his concerns were ignored. The worker was also subjected to derogatory comments by his supervisor in the guise of jokes about his workplace accident. That behaviour further exacerbated the worker's psychological distress.
The Vice-Chair emphasized that in a return to work the whole person must be accommodated. Both the physical and the psychological safety needs must be considered. In addition, it is necessary to consider how interpersonal interactions will impact the psychological aspects of a worker's injuries. As per OPM Document No. 19-02-01 "Work Reintegration Principles, Concepts, and Definitions" , it is a requirement that modified work be safe, productive, and consistent with the worker's functional abilities.
Overall, in these circumstances, the Vice-Chair found that the worker's inability to attend a RTW meeting did not amount to a failure to cooperate for benefits purposes, especially given the multiple exacerbations of the worker's PTSD. The Vice-Chair noted that the worker was subjected to months of demoralizing and unsuitable modified work. He was then instructed to perform psychologically unsuitable work with the machine that had crushed him. The worker's valid rational objections were dismissed amidst derogatory comments by the supervisor. Moreover, the accident employer had a detrimental effect on the worker's psychological health. The Vice-Chair noted that it was reasonable in the circumstances for the worker to decline to participate in the RTW meetings and to refuse the offered modified work. Thus, the modified work with the accident employer was unsuitable.
In addition, given that this modified work was unsuitable, it was reasonable for the worker to decline the RTW offer. The worker's loss of earnings were due to his compensable injuries. He was therefore entitled to LOE benefits.
With respect to continued entitlement for the worker's psychotraumatic disability, the worker provided credible testimony that he continued to have panic attacks when he saw balers or company vehicles from the accident employer. The worker testified that his psychological problems impacted his interactions with his family, and he could not give them his best. It was recognized that, but for the workplace accident, the worker would not have been like this. The Vice-Chair concluded that the worker had an ongoing impairment of his psychotraumatic disability as of August 13, 2019, the Board declared MMR date. It was found that the worker continued to experience symptoms of his compensable psychotraumatic disability, was recognized as having a permanent impairment, and was therefore entitled to a NEL assessment.