- Availability for employment (retirement)
- Early and safe return to work {ESRTW} (cooperation)
- Loss of earnings {LOE} (cooperation)
- Suitable occupation
- Suitable employment (modified duties)
The employer appealed a decision of the ARO which found that the worker was entitled to full loss of earnings benefits (LOE) from May 29, 2013 to April 2, 2017. The worker had been diagnosed with a right shoulder rotator cuff tear for which she received an additional 1% NEL award for the right shoulder. The worker was then granted an 8% NEL award for her residual psychological impairment.
The Panel allowed the appeal. With respect to a preliminary issue, the Panel noted that there was no need to determine if the second ARO had jurisdiction to overturn the decision of the first ARO. The Panel agreed with Decision No. 2849/00, that it is not the Tribunal's role to second-guess the WSIB's processes or to decide cases on the basis of failure of Board process. The Tribunal conducts a de novo hearing and decides appeals on their merits and justice. The Panel concluded that while the worker was not able to return to her pre-injury job as a PSW, she would have been able to perform modified work within her medical restrictions on a full time basis. The fact that the worker was found to be eligible for CPP disability benefits did not necessarily mean that the worker was unfit to return to any kind of work for purposes of the WSIA. The employer had identified and offered the worker the position of full-time NUSW that would be vacant and available June 30, 2013, at no wage loss. The Panel found that the job was suitable.As noted in previous Tribunal decisions, a job may still be found to be suitable despite a non-organic condition (see Decision No. 664/07). Tribunal decisions have also held that a lack of commitment to succeed in the modified duties may contribute to a finding that a job that was offered was suitable despite the worker's concerns that they were in too much pain to perform it (see Decision No. 1159/03). In this case, the Panel found that the worker lacked a commitment to succeed in the NUSW job. The evidence indicated that age was an element in the worker's response to a return to work. The Tribunal has held that a lack of motivation to return to gainful employment should not prejudice a worker who is genuinely unemployable (see Decision No. 1022/10). However, the worker was employable. Tribunal decisions have also held that where a worker fails to communicate problems with modified work in the early and safe return to work which work is unsuitable and therefore precludes the employer and/or the WSIB from providing further modified work, LOE benefits may be denied (see Decision No. 2124/12).The Panel concluded that the worker's loss of earnings from May 29, 2013 to April 2, 2017 was not a result of her 2011 work injury but as a result of her refusal of suitable modified work. As held by the Vice-Chair in Decision No. 2474/00, from the time that suitable modified work is available to the worker, the worker's loss of earnings is no longer a result of the injury. Further, as noted in Decision No. 583/98, the test to qualify for wage loss benefits is not whether the worker's decision to stop working may have been a reasonable one, but whether, by retiring, the worker made herself unavailable for available suitable modified work with the accident employer. By making a personal choice in favour of retirement, the worker in effect declined the offer of suitable modified employment from the accident employer.