- Availability for employment (offer from accident employer)
- Loss of earnings {LOE} (cooperation)
- Early and safe return to work {ESRTW} (cooperation) (employer)
The Board granted the worker initial entitlement for a left shoulder strain/sprain, which was updated to include left shoulder rotator cuff tendinopathy and a biceps tendon tear. The Board initially denied entitlement to LOE benefits for July 30 and 31, 2020, as the worker was physically able to return to work, but did not do so due to non-compensable commitments (medical appointments). The appeal was later allowed, as it was determined the worker had been co-operative in the Early and Safe Return to Work (ESRTW) process and returned to work within 3 business days of the employer's offer of suitable work.
The employer appealed this ARO decision. The issue under appeal was the worker's entitlement to LOE benefits for July 30 and 31, 2020. The employer's appeal was denied. The worker's union representative argued that the worker's two-day absence was an example of temporary unavailability that fell under the Board's policy on post-accident, non-work-related change in circumstances. This is outlined in OPM Document No. 15-06-08, "Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances" (Temporary impact): "In cases where a worker is temporarily unable to participate in health care or RTW activities for a brief period of time..." The Vice-Chair found the worker was fully co-operative with the ESRTW process. The worker attended the July 29, 2020 return to work meeting with the expectation that a return to work date would be discussed, rather than imposed, and the employer had not provided notice to the worker. The Vice-Chair found it was not reasonable to expect the worker to begin modified duties in such a manner. Board policy describes the need for the workplace parties to co-operate with each other, which includes finding a reasonable and mutually acceptable date on which to start modified duties. The worker requested to start on the Monday after the meeting date - a delay of 2 working days. This was not an unreasonable delay, particularly as the worker provided a specific and compelling reason (previously scheduled medical appointments) for the request, as stipulated in Board policy. It would not be reasonable to expect workers who are in the ESRTW process to schedule their non-compensable appointments outside of their standard work hours, even when they are on medical leave, on the chance that suitable work may be offered at any time. The worker's lack of availability to work on July 30 and 31, 2020 was due to a compelling reason, as outlined in Board policy, and not indicative of non-co-operation in the ESRTW process. OPM Document No. 15-06-08 states that, when workers are unavailable for brief periods of time, full benefits should be maintained. The document provides a period of four weeks as an example of a "brief period of time." The delay in the worker's return to work was well within this standard. Accordingly, the worker was entitled to full LOE benefits for July 30 and 31, 2020.