Imagine for a moment that you are a paramedic, and you have PTSD due to your exposure to several traumatic calls during your career. You’re permanently restricted from returning to the career you loved. You returned to modified work as a physiotherapy assistant for approximately 1 year, in a position that wasn’t permanent, and not suitable for your restrictions. When that temporary position came to an end, there was nothing offered to you in its place.
You are now at home, left in limbo. You find a job that seems to be a good fit for your ongoing psychological restrictions, but it pays far less than what you were earning as a paramedic. You present it to the WSIB Return to Work Specialist, who approves the job as a suitable, and so you accept the job offer and resign from your full-time employment with your accident employer. The case manager approves ongoing partial loss of earnings benefits to make up the difference in pay as of the date of your resignation. You feel like you have new purpose as you move forward with this new chapter in your life.
But then, the employer files an appeal. Despite the fact that they had nothing to offer, they argue they could have and would have offered suitable modified work at some point in the future, and by voluntarily resigning you failed to cooperate in the return to work process. Approximately 17 months later, the WSIB Appeals Resolution Officer agrees with them and revokes your entitlement to ongoing partial loss of earnings benefits.
Imagine the betrayal you would feel in that moment, followed by panic that sets in, when you wonder how you will pay your bills and support your family, with this sudden and significant reduction in your income.
Thankfully, after appealing the decision to the Workplace Safety and Insurance Appeals Tribunal, the Panel restored our client’s loss of earnings benefits. They agreed that the worker acted reasonably in accepting new work, and she was not at fault for her loss of earnings. She consulted with the WSIB, followed their advice, and found a job suitable for her condition. Furthermore, although the employer’s position was that they intended to offer suitable work in the future, the Panel ruled that the worker was under no obligation to wait indefinitely for a suitable job. Genuine intentions don’t render unsuitable work suitable.
Could have, would have, should have. You can read the decision here.