What the panel treated as outcome-determinative, and which side it favoured.
No bona fide written offer of modified work was made by the employer.
Favours Applicant prevailed
Employer failed to meet burden to show offer of modified work, supporting applicant's entitlement to temporary disability benefits.
From the decision · page 7Here, by the defendant's own admission, no offer of modified work was ever made in
writing, thus employer cannot meet its burden that an offer of modified work was ever made. While
applicant did go back to work for some period, there is no evidence that he was actually working
in a modified capacity. There is no evidence that parameters were set by the employer for the
capacity in which applicant would work or that any meaningful discussion was had regarding
accommodation of the restrictions. Further, each of defendant's witnesses testified that they either
saw him working beyond the restrictions or knew that it was likely that he was working beyond
the restrictions. Thus, it is apparent that applicant could not modify his position, and the employer
did not make clear the manner in which he would be accommodated. Defendant is unable to show
that either an offer was made or that applicant's restrictions were appropriately accommodated.
Applicant's resignation was due to health reasons related to the industrial injury.
Favours Applicant prevailed
Resignation was not a voluntary non-industrial act but due to worsening injury effects, supporting entitlement to benefits.
From the decision · page 7Moreover, the language of the resignation alludes to applicant's physical health being
affected thereby leading to his resignation. While the resignation does not specifically mention the
injury to the right wrist as being the cause for the resignation, applicant testified that he was having,
"ongoing progressive damage to his body, particularly his arm" and that the "injury to his arm was
getting worse due to the heavy lifting." (MOH/SOE, 10:2-7.) Thus, the resignation following the
period of regular work is not a bar to temporary disability where there is no evidence that a bona
fide offer of modified work was made and where the resignation was due to the effects of the
industrial injury.
Employer witnesses observed or suspected applicant working beyond restrictions but did not provide clear accommodation or written modified work offer.
Favours Applicant prevailed
Lack of clear accommodation and written offer supports applicant's claim for temporary disability benefits.
From the decision · page 7Here, by the defendant's own admission, no offer of modified work was ever made in
writing, thus employer cannot meet its burden that an offer of modified work was ever made. While
applicant did go back to work for some period, there is no evidence that he was actually working
in a modified capacity. There is no evidence that parameters were set by the employer for the
capacity in which applicant would work or that any meaningful discussion was had regarding
accommodation of the restrictions. Further, each of defendant's witnesses testified that they either
saw him working beyond the restrictions or knew that it was likely that he was working beyond
the restrictions. Thus, it is apparent that applicant could not modify his position, and the employer
did not make clear the manner in which he would be accommodated. Defendant is unable to show
that either an offer was made or that applicant's restrictions were appropriately accommodated.