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Procedural Safeguards For Selective/Light Employment
000/01/21-05
THE WORKERS' COMPENSATION BOARD OF BRITISH COLUMBIA
RESOLUTION OF THE PANEL OF ADMINISTRATORS
RE: Procedural Safeguards For Selective/Light Employment
WHEREAS:
Pursuant to Section 82 of the Workers Compensation Act, RSBC 1996, Chapter 492 and amendments thereto, the Panel of Administrators ("Panel") must approve and superintend the policies and direction of the Workers' Compensation Board ("Board"), including policies respecting compensation, assessment, rehabilitation and occupational safety and health, and must review and approve the operating policies of the Board;
AND WHEREAS:
The Board's policy for selective/light employment is provided in policy item #34.11 of the Rehabilitation Services and Claims Manual;
AND WHEREAS:
Following a recent decision of the Appeal Division, the Compensation Services Division identified the need to clarify the Board's policy regarding selective/light employment;
AND WHEREAS:
On the advice of the Policy Development Consultative Committee, the Policy Bureau consulted with the employer and worker communities on the matter;
THE PANEL OF ADMINISTRATORS RESOLVES THAT:
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Policy item #34.11 in the Rehabilitation Services and Claims Manual is amended to clarify the conditions that must be met prior to an injured worker undertaking selective/light employment and to specify situations where a Board officer will intervene to ensure that the employment is suitable. Policy item #34.11 is also amended to specify the factors that should be considered when determining the reasonableness of a worker's refusal to accept an offer of selective/light employment.
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The amendments to policy item #34.11, as attached, are approved.
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The Board will take steps to ensure that workers and employers are informed of their option to request Board intervention in matters involving selective/light employment.
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The amended policy item #34.11 is effective on April 1, 2000. The policy shall apply to all offers of selective/light employment that are made on or after the effective date.
DATED at Richmond, British Columbia, March 16, 2000.
By the Workers' Compensation Board
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APPENDIX 1
REHABILITATION SERVICES & CLAIMS MANUAL
[Deletions Struck Through, Additions in Bold]
#34.11 Selective/Light Employment
A claimant may be totally disabled from carrying
out normal work following an injury but the employer may offer alternative
work which the claimant can do and which will reduce or avoid any loss
of earnings.
The Board's policy in these situations is
as follows:
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Selective employment is appropriate, and indeed valuable, in all cases where the employer has a suitable and productive job available and is willing to offer that job to an injured worker who has not yet fully recovered from the injuries, is not yet able to return to the original job, but who is capable of some form of suitable employment. -
It is impossible to lay down all conceivable criteria which might be applied to determine the relative "productivity" of a job offered an injured worker while completing physical rehabilitation before returning to normal work. In considering whether the work offered is productive or useful, the Adjudicator first of all must be aware of the exact nature of a job being offered and, where in doubt, should personally investigate the circumstances. There should be no question that if the work offered is token or demeaning, it is not suitable for selective employment. -
The worker's attending physician must be apprised of the nature of the work and must conclude that the job will not harm the patient nor slow recovery. Within reasonable limits, the worker must agree to the return to work.
As to the reasonableness of a worker's refusal
or acceptance of selective employment, many factors come into play. Certainly,
the opinion of the physician about the ability of the worker to perform
suitable employment must be based on a true understanding of the facts
and an accurate assessment of the job being offered. That can only be
accomplished by the physician taking some brief time to enquire personally,
not only of the worker but also of the employer, about the work. Similarly,
the Board accepts without hesitation that there may be some cases when
a physician has over-estimated a worker's capacity to perform any work,
let alone selected light duties, and the worker may well protest that
in spite of the physician's opinion, the worker is not able to physically
perform the duties offered. In such a case it is clearly proper for the
worker to refuse to return to work in spite of the physician's opinion
and the availability of productive employment.
However, the Board must also reserve to itself
the right to enquire into the reasons for a worker's disagreement with
a "selective" job offer. If it is found that the refusal has
nothing to do with the physical capacity of the worker to perform the
job or whether the job is or is not productive, but is based on extraneous
considerations or on the worker's simple unwillingness to return to any
form of employment until fully fit to return to the pre-injury job, it
must be decided whether compensation benefits should be continued, reduced,
or terminated.
Statement of Principle
Selective/light employment is a temporary work alternative, offered by an employer, that is intended to promote a worker's gradual restoration to the pre-injury level of employment. The Board supports selective/light employment as an important component of a worker's rehabilitation and recognizes the value of maintaining an injured worker's positive connection to the workplace. It has been amply demonstrated that the earlier a worker is able to safely return to productive employment following an injury, the more likely he or she is of obtaining maximum recovery.
Criteria
To ensure that the early return-to-work is appropriate, all selective/light employment arrangements must meet the following conditions:
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While the compensable injury may temporarily disable the worker from performing his or her normal work, the worker must be capable of undertaking some form of suitable employment.
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The work must be safe for the injured worker to perform. The worker's attending physician must be apprised of the nature of the work and conclude that it will neither harm the worker nor slow recovery. Should the attending physician be unable or unwilling to provide the required advice, a Board medical advisor must make the necessary determination.
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The work must be productive. Token or demeaning tasks are considered detrimental to the worker's rehabilitation.
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Within reasonable limits, the worker must agree to the arrangement.
Intervention
The Board recognizes that the successful development of selective/light employment opportunities depends on the cooperation of all parties in the workplace. In the following situations, the Board will intervene to determine if a particular offer of selective/light employment is suitable:
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The worker and employer are in disagreement over the terms of the return-to-work.
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There is a request for intervention by either the worker or employer.
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The Board officer adjudicating the claim considers that further inquiry is required.
Adjudication
On intervention, the Board's evaluation will be based on, but not limited to, a detailed description of the employment being offered, including the physical requirements and detailed medical information outlining the worker's physical restrictions and medical requirements.
Where a worker refuses to accept the offer, the Board will consider the reasons for refusal and determine if they are reasonable. In making this determination, a Board officer will give regard to the nature of the work, and the worker's physical restrictions and medical requirements. Notwithstanding, Board officers have discretion to consider additional factors or evidence relevant to the case, such as transportation (see policy item #82.00) and child-care (see policy item #84A.00).
Where a worker accepts suitable selective/light employment, benefit entitlement will be determined under Section 30 of the Act.
Should the Board determine that the worker's refusal is unreasonable, benefit entitlement may be determined under Section 30 of the Act.