Return to Work- Part 1- The simple gets complicated

Injured workers are offered modified work by the accident employer in situations of varying complexity. There are often disputes about the worker's level of impairment (total vs. partial), restrictions, the impact of "non-compensable" conditions, and the sustainability and meaningfulness of work, which complicate a return to work. This series begins with the simplest case- return to work for a worker who is partially impaired with agreed restrictions for a single compensable condition where the work is obviously sustainable and meaningful. The only issue in this simple case is whether the work is suitable. In other words, are the requirements of the work consistent with the worker's restrictions?

There is a whole field of professional study, ergonomics, which concerns itself with the physical requirements of tasks and their relationship to health and impairment. Until recently, the Board employed ergonomists who would often review modified work and provide lengthy opinions about the work and its compliance with the worker's restrictions. This will no longer occur. Instead, Return to Work Specialists (who may or may not have ergonomic training) will meet with the worker and the employer and give quick oral opinions about whether work is suitable. The Specialists are not expected to provide reports about the physical requirements of the job and reasons for their opinions.

This process bears no relation whatsoever to the law and Board policy which in theory ought to govern the situation. The Workplace Safety and Insurance Act, sub-sections 40(5) and (7) speaks of mediation to resolve disputes. Board policy suggests that the Board can use functional abilities evaluations, ergonomic assessments, controlled environment assessments and work trials, to assist in the process. The Board holds the view that the new Service Delivery Model allows it to avoid using the discretionary resources provided for in the policy.

So, what ought a worker to do when faced with a quick and dirty opinion from a Return to Work Specialist that proposed work is suitable for his/her condition, and he/she disagrees with it? There are no easy answers. Factors that workers ought to take into account in deciding whether to attempt the modified work include:

• whether the work is literally unsafe for the worker and co-workers (climbing ladders for a worker with a knee injury or working with machines for a worker with blackouts), or whether the work is merely inconsistent with restrictions and may result in a recurrence,
  
• the availability of alternative sources of income such as Employment Insurance sick benefits in the event that the worker does not return to work and WSIB benefits are cut,
• in the event that the worker does return to work, the necessity of documenting by letter the work returned to, any changes to the work after return and any changes after the return to work in the worker's condition (by report from a physician ideally).

Modified work offers carry little risk for employers, and huge risk for workers. For employers, if the work is refused, the worker's benefits are likely to be suspended for non co-operation. If the worker returns to work, the employment situation may be difficult but the claims cost will diminish. For workers on the other hand, a modified work offer poses risks of re-injury upon a return to work, and a suspension of benefits upon refusal.

Next up: Return to Work and Non-Compensable Conditions

WSIB Chair's Consultation Report

The Chair's Consultation Report was released recently. The report suggests that cost containment measures (i.e. benefit cutbacks) are necessary because of the Board's poor economic situation. What the report does not say is that the Board's poor economic situation is due to historically low employer assessments and WSIB investment losses in recent years. In essence, Ontario employers benefited during the good times from WSIB investment practices (with lower assessments than what would otherwise have been required to fund the system thanks to high investment returns) and now seek to avoid responsibility in the bad times by pleading poverty. Like Wall Street bankers, it does not look good on them.