Highlights of Noteworthy Decisions

Decision 608 22
R. Horne
  • Suitable employment (factors other than physical capability)
  • Availability for employment (transportation to work)
  • Loss of earnings {LOE} (employability)
  • Loss of earnings {LOE} (cooperation) (transportation)
  • Available employment (COVID-19 closure)

A worker sought entitlement to Loss of earnings (LOE) benefits from March 21, 2020 to June 1, 2020. The worker's appeal was allowed.

In this case, the worker's family doctor stated that her patient was unable to return to any type of work. Her opinion was supported by FAF reports and clinical notes documenting the worker's reduced mobility, limited weight bearing and an inability to drive. The Vice-Chair accepted the evidence that the worker's recovery became prolonged due to his inability to access physiotherapy. The Vice-Chair noted that this was also borne out of the record - once the worker was able to access physiotherapy he experienced considerable improvement and was eventually able to return to modified work.
The Vice-Chair emphasized that workers should not be penalized for good faith reliance on their family doctor's advice to remain off work. This is especially true in the acute phase of injury or disability. For the purposes of analysis, the Vice-Chair also considered it important that there were no other competing medical opinions in the Case Record, i.e. documentation supporting a return to work.
Furthermore, the Vice-Chair stated that it was debatable whether suitable work was available to the worker for the period under review. The worker testified that when he asked for clarification regarding what type of modified work might be available, at the request of his doctor, he was told there was none. In addition, the office where the work was to be performed was no longer operating due to public health restrictions. The Vice-Chair stated that, while there was no independent documentation supporting that the office was closed during this period, the worker's testimony was accepted because it had a ring of truth. The Vice-Chair acknowledged that starting in mid-March of 2020, there were widespread public health restrictions over a broad range of sectors due to the COVID-19 pandemic.
The Vice-Chair also noted that it was undisputed that an inability to drive was one of the worker's functional limitations. There was no evidence of significance that the employer offered transportation to and from the workplace as part of their modified work offer. It was pointed out that OPM Document No. 19-02-01 "Work Reintegration Principles, Concepts and Definitions" states that for suitable work to be considered safe, the worker must have the "functional ability to travel safely to and from the proposed worksite." Based on the available medical reporting, the Vice-Chair determined that the worker was unable to safely travel to and from the workplace. There was no evidence of significance that the employer had offered transportation. On this basis alone, the worker was deemed unable to return to the proposed modified work.
Accordingly, the Vice-Chair found that the worker had entitlement under Section 43 of the WSIA to full LOE benefits from March 21, 2020 to his eventual return to work on June 1, 2020.