- Available employment (offer from accident employer)
- Suitable employment (suitable for worker's capabilities)
- Labour market re-entry {LMR} (eligibility)
- Loss of earnings {LOE} (eligibility) (impairment)
- Suitable employment (modified duties)
The worker was employed as an elementary school educational assistant. The worker tripped on construction fencing on school property and fell to the ground. Following an assessment for her neck injury, the worker was awarded a Non-Economic Loss (NEL) benefit based upon a whole person impairment rating of 13%. The issues under appeal were: a) the suitability of modified duties; and, b) entitlement to Loss of Earnings (LOE) benefits from June 29, 2020.
The appeal was allowed, in part. In addition to the physical limitations detailed by the worker's physiotherapist, the worker's restrictions also included a requirement that she avoid a classroom environment in which she might reasonably be called upon to constrain students or deal with potentially aggressive students. The duties assigned to the worker in September 2020 were unsuitable for they were beyond her restrictions and failed to meet her accommodation needs. In order to fall within the definition of "suitable work" as specified in Board policy, the work must be "safe" and consistent with the worker's functional abilities. The duties were unsafe in the sense that the presence of potentially aggressive students and students who might need to be constrained, unduly exposed the worker, and by extension other students and staff, to the risk of injury.Furthermore, the provision of a radio was among the listed accommodations and was for the stated purpose of enabling the worker "to obtain assistance with all tasks that are outside of her functional abilities." While radioing for assistance could result in other staff coming to the worker's aid, the Vice-Chair accepted that the radio would be of limited value in the moment when it came to reacting to an imminent threat of aggressive or violent student behaviour aimed at the worker or another student. The Vice-Chair found, on a balance of probabilities, that the indicated measures would not have addressed all of the worker's limitations and restrictions, including the safety precautions recommended by her medical professionals. The worker sustained a loss of earnings during the time frame in question and, accordingly, the worker was entitled to LOE benefits under section 43(1) WSIA.With respect to entitlement to LOE benefits from June 29, 2020, the loss of earnings the worker experienced as of that date were not related to her compensable injury, but rather her regular anticipated seasonal lay-off. As of September 23, 2020, however, the worker did have a loss of earnings arising from a compensable condition, as the employer failed to provide suitable modified work. Accordingly, the worker was entitled to LOE benefits as of September 23, 2020. As the employer was unable to arrange work for the worker that was consistent with her functional abilities, the Vice-Chair remitted the matter back to the Board for the purpose of providing the worker with a labour market re-entry (LMR) assessment. The worker was entitled to full LOE benefits from September 23, 2020, through until the start of that LMR assessment. The issue of the worker's entitlement to LOE benefits, and the quantum and duration, as of the LMR assessment, was remitted to the Board for determination.