Highlights of Noteworthy Decisions

Decision 388 22
K. Jepson
  • Availability for employment (medical authorization)
  • Disablement (repetitive work)
  • Loss of earnings {LOE} (cooperation)
  • Tendonitis (hand)
  • Loss of earnings {LOE} (eligibility) (impairment)

The worker was granted entitlement for soft tissue injuries to her right hand and wrist on a disablement basis. She was diagnosed with tendonitis and tenosynovitis. The worker declined modified work on two occasions at the hospital where she had worked, and appealed the Board's decision to deny LOE benefits for these respective periods of time.

The worker's reasons for denying the modified work included concerns about her pain whilst completing job duties, COVID-19 protocols and being able to put on the required PPE, as well as symptoms of drowsiness/dizziness from her pain medications. The worker also pointed to the reduced train schedule due to COVID-19.
The Vice-Chair questioned whether the worker's doctors were aware of the modified job duties and what they entailed. There was no indication of such, and the worker's testimony was inconsistent regarding this. The Vice-Chair noted that the two job offers were written, and the worker could have simply shown them to her doctors. As such, the Vice-Chair was inclined to find the doctor's recommendations regarding not returning to work less persuasive as they did not have full knowledge of the possibilities for accommodation. It was noted that the worker did not communicate her concerns to her employer who specifically referenced the possibility of discussing alternate or additional accommodations. In addition, the objections the worker raised to modified work were not supported by her medical documentation and were, in part, speculative and based on the worker's subjective reasoning. The Vice-Chair also noted that the worker did not produce independent evidence regarding the reduced train schedule and how the reduction would have prevented the worker from getting to and from work.
On the balance of evidence, the Vice-Chair found that the modified duties offered were at least prima facie suitable given the worker's medical restrictions. The medical documentation also did not persuasively demonstrate that the worker could not at least attempt the modified work. The worker was granted entitlement to full LOE benefits with respect to the first job offer, as the Vice-Chair recognized that she required time to obtain the medical assessments and informed advice regarding her return to work on modified duties. However, by the time of the second offer, the Vice-Chair noted that the worker would have been in a position to fully consider the modified work. As such, the worker was not entitled to LOE benefits for this period.