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Have you been permanently injured while working on a construction site? Does your employer have the ability to accommodate you with suitable work on a sustainable basis? Is the work you are performing productive?

In cases where a permanent injury prevents a worker from performing their pre-accident work, employers are asked to accommodate a worker’s limitations, prior to commencing a Work Transition Plan in the outside labour market.

The Workplace Safety and Insurance Board (WSIB) policy 19-02-01 defines “suitable work” as:

Post-injury work (including the worker’s pre-injury job) that is safe, productive, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings.

The policy goes on to define “productive” work as follows:

When considering whether an offer of work is suitable, the workplace parties and the WSIB consider whether the work is productive, i.e. whether it provides an objective benefit to the employer’s business.

In many situations, permanent injuries will not allow a worker to return to heavy, labour-intensive work. And most employers do not have the ability to accommodate their workers in an office, as they already have a full staff.

Attempts may be made to accommodate on job sites, and this may be suitable, depending on the impairment and limitations.

There are, however, many situations where employers will advise the WSIB that they are in fact able to accommodate, in order to reduce the financial impact that a claim will have on them. In reality, the worker is doing little more than sitting in a corner counting paper clips. This is not productive, nor is it of benefit to the employer’s business.

Over the last couple of years, the WSIB is more than willing to accept that the work offered is suitable, as they are usually provided with a list of tasks that the worker “could perform”. There has also been a push to continue employing workers with their accident employers, to reduce training costs.

Here is an example of a claim that clearly demonstrates this. A construction worker permanently injured his knee and was no longer able to perform his pre-accident work. The employer advised the WSIB that they could accommodate him, and provided a list of duties that were to be available on a full-time basis. However, the worker continually notified the WSIB that full-time work was not available, and spent most of his time fixing extension cords and watching Netflix. 

The suitability of the work was appealed and the Appeals Board concluded that the work was not productive. The worker’s benefits were to be reinstated and consideration to retraining through a Work Transition program was to be reviewed.

If you feel that you are being accommodated in a role that is non-productive, you should consider appealing the suitability of the decision. It is important to note, however, that job suitability decisions must be appealed within 30 days of the date of the decision, or the worker may lose their right to proceed with the objection. It is therefore important to try to identify from the outset the likely ability of the employer to provide work that will meet the requirements.

If you have any questions about the kind of post-injury work you have been assigned, please contact us.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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