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Injured worker wins 14-year appeals battle over ability to do recommended job

A British Columbia worker with a partial disability from a workplace accident has won a long battle in getting an assessment that he was suitable for a particular position overturned.

Douglas Amos was a truck driver in the logging industry in British Columbia. He started in 1976 and mostly worked as an off-highway driver in remote areas and isolated logging roads in the province.

On Oct. 17, 1997, a falling log hit Amos from above, knocking him onto his face and chest. The accident resulted in a concussion and several compression fractures of his vertebrae. Amos sought compensation for his injuries and the B.C. Workers’ Compensation Board (WCB) awarded him wage loss benefits and a permanent partial disability award.

Because of his partial disability, Amos wasn’t able to return to work as a truck driver. The WCB put him on a vocational rehabilitation plan and referred him to an occupational therapist for a functional capacity evaluation (FCE), which would determine his abilities to return to work. On Jan. 31, 2001, the assessment determined several potential jobs Amos could do, including that of a dispatcher.

The evaluation indicated that in the position of dispatcher, Amos should have a hands-free telephone to “minimize the sitting component of this occupation” and allow him to stand and move around as needed. Another occupational therapist evaluated Amos and the resulting report also listed restrictions on his ability to sit, including one hour at a time and the use of a headset.

[strong]Worker disagreed with assessment of suitable job

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Amos advised that the positions on his evaluation were not suitable as he couldn’t meet their physical demands, they weren’t reasonably available to him and they paid significantly less than what he had been making as a truck driver. However, the WCB disagreed and his wage-loss benefits were discontinued after a 12-week job search period during which Amos applied for at least five jobs per day without success. In November 2001, Amos was sent a letter that stated he “possessed sufficient skills to access physically suitable employment within the next three to five years.”

The WCB’s disability awards department reassessed his permanent partial disability pension and in January 2004 it slightly increased his pension. It also referred to the November 2001 letter regarding his employability.

Amos appealed this decision but a review officer agreed his skills were transferable to that of a dispatcher position and such jobs were reasonably available. Amos appealed again, this time to the workers’ compensation appeals tribunal.

By early 2005, Amos was still unable to find a dispatcher position so he sent questionnaires to several employers who had posted such positions about the requirements of the job. Those who returned the questionnaire indicated the job involved sitting for at least seven hours per day at a desk and there was no way of modifying this other than taking breaks. Most also disagreed that giving a dispatcher a wireless headset would reduce the amount of time sitting to perform the duties.

Amos also underwent a sitting tolerance assessment by a physiotherapist, which concluded he could sit in a reclined position for up to two hours but not an upright position for more than seven minutes. It also determined he would need to sit in an adjustable reclining chair at work.

In March 2009, Amos advised the WCB of his research into the requirements of the dispatcher position and the fact many required ten years of experience and extensive knowledge of highway regulations, geographic knowledge, familiarity with bills of lading and operation of different highway vehicles, as well as particular computer skills which he didn’t have. However, the tribunal upheld the finding that the position of dispatcher was physically suitable and reasonably available to him over the long term. Amos requested a reconsideration and a WCB reconsideration panel confirmed the decision. Amos then brought the issue to the B.C. Supreme Court.

The court noted that “a reasonably available job is one that is available to the claimant; not just any job position in which there are vacancies.” In the assessment of Amos, “relevant characterizations” such as age, lack of experience and functional limitations were not taken into account, said the court.

The court found there were generalizations used about dispatch jobs and their availability and little consideration given to whether Amos, with his particular limitations, was likely to be hired.

“Reference is made to statistics and market research. There is simply no consideration of the competitiveness or employability of an individual who requires modifications to the dispatch position,” said the court.

The court also found the assessment and the reviews of the earlier decisions by subsequent panels and tribunals relied “solely on the opinion” of the original vocational rehabilitation assessor, despite Amos’ research into why he couldn’t get a dispatcher job.

The original assessment determined Amos could perform the dispatcher position with certain modifications, but didn’t have any proof those modifications could be done. This assessment lacking in factual basis was perpetrated at each level of appeal in a “circular pattern” that “permeates the entire matter from this time forward,” said the court.

The court found the original decision concerning Amos’ employability and the related entitlement to loss-of-earning benefits was “patently unreasonably because of a failure by the tribunal to apply board policies and consider the merits of the case within those policies.” The decision was set aside and the issue of Amos’ pension entitlement was referred to a different tribunal for a new hearing.

Jeffrey R. Smith

Jeffrey Smith
Jeffrey R. Smith is the editor of Canadian Safety Reporter and Canadian Employment Law Today, sister publications of COS.
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