Removal from normal job not result of compensated injury: Tribunal

Worker never raised issue of hearing loss before or after he was removed from his job driving forklift for other reasons

An Ontario company was not obligated to re-employ a worker with a successful workers’ compensation claim in his old position because his removal was unrelated to the condition for which he received compensation, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.

The 66-year-old worker started with the company in 1964 as a material handler, which included the operation of a forklift, until November 2000 when he suffered a stroke. He returned to his old position in September 2001.

Before long, the company became concerned with the worker’s ability to operate a forklift safely. It reassigned him to a general helper position in July 2002.

The worker filed a grievance for his removal from his material handler position as it had less pay. He failed an independent forklift driving test and the tester recommended he not operate one. The company agreed to pay him his old, higher wages to work in the new position in return for his agreement that he wouldn’t be assigned to the material handler position.

In March 2004, the company announced it would be closing down its plant, effective July 1. The worker had the option of requesting to be moved to a position that wasn’t terminated, placed on a recall list that would delay his severance pay or be let go and receive his severance immediately.

The worker chose to be placed on a recall list, but a month later said he wanted his severance pay instead. The company agreed and he was officially terminated in August 2004.

The worker filed a workers’ compensation claim for hearing loss due to noise in the plant. The claim was successful and he filed another saying the company had breached its obligation to re-employ him in his old position after being unable to work from the injury.

The appeals board denied the claim, saying the worker’s hearing loss didn’t cause him to lose any time at work and he was doing his normal job duties as a general helper when he was let go.

The appeal tribunal upheld the decision, saying the worker’s removal from the material handler position was not from the hearing loss but because he couldn't perform the duties. The company had no obligation to re-employ him in that job, the tribunal said, because he had been removed for a different reason than the injury he claimed.

“If the worker was unable to perform the material handler job because of his compensable hearing loss, then he would be regarded as being ‘unable to work’ within the meaning of board policy,” the tribunal said. “The evidence establishes that the worker’s removal from the material handler position was not related to his compensable hearing loss.” See Ontario Workplace and Insurance Appeals Tribunal Decision No. 278/08 (Feb. 13, 2008).

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