Hypothetical fitness for work doesn’t mean anyone will hire you.
When a disabled worker can’t return to their employer due to restrictions from a compensable injury, WCB follows its procedure manual. The Board first needs to determine the worker’s capabilities. They order a functional capacity evaluation (FCE), which assesses whether the person can safely return to any work and at what level. This involves a series of standardized physical tests administered by a physical or occupational therapist. If the FCE reveals any physical ability, clearance for work will likely follow, even if significant disabilities remain. And so, because in all likelihood you’ll be declared ready for work, you can expect to be referred to WCB’s Reemployment Services for a triage assessment. According to WCB’s procedures, during the triage assessment, a re-employment provider “collaborates” with the worker to support the worker’s return-to-work. The RE provider then makes recommendations for the re-employment services that will best suit the worker. The case manager then actions the recommendations, authorizing services and benefits as appropriate.” This all sounds fine and well, but to take a step back, should medical factors be the only consideration when determining employability? Fitness for work shouldn’t be confused with employability. When a case manager reviews a claim to determine the appropriateness of a referral for re-employment services, they should also consider other factors such as the worker’s age, English language proficiency, pre-existing physical conditions, learning disabilities, etc. Employability is clearly a multifactorial determination, or at least it ought to be.Total Disability vs. Competitive Unemployability
Understanding the difference between total disability and competitive unemployability is essential. Total disability typically requires medical confirmation that a worker is completely incapable of any work. In contrast, competitive unemployability recognizes that even if a worker is not totally disabled, they may still be unable to compete effectively in the job market due to a combination of factors. A recent WCB case in Ontario highlights this well. In WSIAT Decision No.1308/20, the worker in this appeal was 51 years old with a Grade 10 education, severe learning disorder, and attention deficit disorder. His only work experience was as a construction laborer, which he could no longer do. He had no experience with public interaction or administrative tasks and had limited physical capacity to stay seated or standing due to an L-1 fracture. He also suffered from a generalized anxiety disorder manifesting as agoraphobia and was on multiple medications, including Percocet, Pregabalin, Zopiclone, and Lorazepam. Despite these barriers, the Board determined that the worker remained employable following his compensable low back injury, and concluded that while the worker was prevented from returning to his pre-injury job in construction, he had the capacity within his functional limitations to work full-time. According to WSIAT, the appeals body who oversees WCB in Ontario, “tribunal jurisprudence takes into account that employability and (fitness for work) are separate and distinct concepts.” As stated in Decision No. 563/08, 2008 ONWSIAT 1576:“A worker may be only partially impaired, but competitively unemployable if he or she has no real prospect of being able to obtain or maintain employment in the labour market. Competitive unemployability may occur for a number of reasons, including the worker’s age, level of education, transferable skills, literacy, or the nature of the compensable condition from which the worker suffers. Workers who become competitively unemployable as a result of an injury have been granted full (wage-loss) benefits by Tribunal decisions.”WSIAT ultimately decided that, given the “worker’s limited education, lack of transferable skills, age, physical limitations and recognized psychological impairments, that the combination of these factors support a conclusion that the worker is competitively unemployable.” The commission found that the worker is “incapable of finding and sustaining any type of gainful employment, and that the worker’s compensable and permanent injuries made a significant contribution to the worker’s complete lack of occupational prospects. For the foregoing reasons, (the Tribunal) finds that the worker is entitled to full benefits to age 65.” The significance of this decision cannot be overstated. The former construction laborer was in his 50s, lacked a high school education, and relied solely on his physical abilities for a living. Dependent on high doses of painkillers and learning impaired, he was rendered unemployable, regardless of theoretical fitness for work (which is also medically debatable). The reality is that no employer would hire him. This WSIAT decision highlights the importance of a contextualized evaluation that considers all personal and professional factors impacting employability.
