The incentive to avoid higher assessments was so great that the employer would sometimes assign injured workers with active WSIB claims non-productive work, such as reading workplace manuals, if no productive work was available within their restrictions. The greater the amount of work time lost during this window, the higher the employer’s assessments are likely to be under the WSIB’s NEER system. The employer did so to minimize time lost during the New Experimental Experience Rating (“NEER”) cost window, which extends approximately four years after an injury. The latter tended to remain off work longer and in receipt of sickness and accident benefits. Generally, workers who were receiving benefits under the Workplace Safety and Insurance Act (“WSIA”) were returned to work more quickly, even when they had significant restrictions, when compared to other workers with such restrictions. The applicant claimed that the employer treated work-related disabilities differently from non-work-related disabilities. As a result, the company delayed returning the applicant to work.
There was some confusion regarding his restrictions, as his specialist failed to respond to various requests for medical information and clarification. However, while the applicant had been off work, he was bumped from his previous job by a worker with more seniority.
Eventually, his cardiologist recommended that he return to light duties. He later experienced two heart attacks, and thereafter had to stop working entirely for a time. Chrysler Canada had long-standing, permanent medical restrictions caused by work-related injuries to his right arm. The Human Rights Tribunal of Ontario (the “Tribunal”) recently held that it is not discriminatory for employers to treat disabled workers with active WSIB claims more favourably in the accommodation process than disabled workers without such claims.
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