- Availability for employment (medical authorization)
- Suitable employment (factors other than physical capability)
- Loss of earnings {LOE} (eligibility) (impairment)
The employer appealed a decision of the ARO, which rescinded the denial of entitlement to loss of earnings (LOE) benefits for the worker for the periods of February 26 to March 9, 2022, inclusive, under Claim A, and May 19 to June 5, 2022, inclusive, under Claim B. The worker had been assigned to work one-on-one with a student with special needs who was known to become physically aggressive and violent at times. This led to the worker sustaining index finger trauma and a high-grade sprain. This decision turned on the suitability of the February 25 and May 18, 2022 offers of modified work.
The Vice-Chair denied the appeal.OPM Document No. 19-02-07, "Return to Work (RTW)," sets out criteria to assess the suitability of modified work that is offered. The post-injury work must be safe, productive, consistent with the worker's functional abilities, and restore the worker's pre-injury earnings, to the greatest extent possible. Within the criteria for establishing that work is safe, the work must not pose a health and safety risk to the worker, his co-workers, or others, and the worker must have the functional ability to travel safely to and from the workplace, meaning he must be capable of safely travelling without posing a health or safety risk to himself or to the public.In considering the above criteria, the Vice-Chair found that the modified work offered on February 25, 2022 was not safe. Returning to work with students who were known to have behavioural issues that included physical outbursts posed a health and safety risk to the worker. If a student became aggressive, it was not clear there would be another adult available immediately to take over the "hands on" work. The Vice-Chair also found that the modified work posed a risk to the students' health and safety. During lockdown drills or possible real lockdown events, the worker would not have been able to safely and quickly secure the doors in the school to protect the students in light of his right hand and upper extremity restrictions. Overall, any work during the period in question would have exceeded the worker's restrictions. It was therefore reasonable for the worker to rely on his treating physician's advice to remain off work for the subject period. The worker also did not have the ability to drive safely to and from the workplace.The Vice-Chair was satisfied that the worker was not capable of earning any income in suitable employment from May 19 to June 5, 2022, as a result of his compensable injury. The worker declined the May 18, 2022 offer for the same reason that he had declined the February offer, because he was following the medical recommendations of his family physician to completely rest his right hand. The work also did not meet the criteria for suitable modified work set out in OPM Document No. 19-02-07 for the same reasons as set out above.