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Do You Need a Workers
Consent to Do a Functional
Return-to-Work Assessment?
A mechanic develops tendonitis as a result of lifting heavy equipment. His doctor’s report is very general
and doesn’t address the demands of the mechanic’s job; it merely says that the mechanic can perform
modified duties as long as he doesn’t have to lift anything weighing more than 10 lbs. or engage in
repetitive arm movements. But the mechanic’s job does involve lifting heavy items and performing other
physically strenuous activities. The employer wants more information about the mechanic’s limitations so it
can assess his ability to return to work. So it asks the mechanic to see the company’s doctor for a functional
return-to-work (RTW) assessment. The mechanic refuses. The province’s workers’ comp law requires
workers to cooperate with their employers in the RTW process. But the workers’ comp board has a policy
that requires employers to get workers’ consent to functional assessment.
QUESTION
Can the employer compel the mechanic to get a functional RTW assessment?
A. Yes, but only if it gets the mechanic’s consent as required by the board’s policy.
B. No, because it already has sufficient information about the mechanic’s condition from his doctor.
C. Yes, because the employer only has to comply with the law—not with the board’s policies—and so
it doesn’t need the mechanic’s consent.
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D. Yes, because the workers’ comp law requires workers to cooperate in the RTW process.
The Correct Answer Is:
D. Because workers’ comp law requires workers to cooperate in the RTW process, the employer can
compel the mechanic to get a functional RTW assessment.
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EXPLANATION
This scenario is based on a case from NL. A city worker was hurt on the job. The worker’s doctor gave the
city some limited information on the worker’s ability to return to work, but the city wanted a full functional
assessment to determine exactly what kinds of work, if any, the worker could perform. The WHSCC said, as
per its policy, that the city needed the worker’s consent to an assessment.
But a court ruled that the city didn’t need the worker’s consent to make him get a functional RTW
assessment. The WHSCC policy requiring consent was ultra vires—that is, it went beyond the WHSCC’s
powers, declared the court. The Workplace Health, Safety and Compensation Act (Act) permits the WHSCC
to make policies that are consistent with the Act and its regulations. Under the Act, an injured worker must
cooperate with his employer in his return to work by helping to identify suitable work that’s available and
consistent with the worker’s functional ability. And the WHSCC consent policy was “diametrically opposed
and contrary” to this duty
WHY WRONG ANSWERS ARE WRONG
A is wrong because the board doesn’t have the legal authority to make the employer get the mechanic’s
consent. The workers’ comp law requires the mechanic to cooperate with his employer in his return to
work by helping to identify suitable work that’s available and consistent with his functional ability. And
having adequate information on the mechanic’s functional abilities is necessary to identify suitable
employment. The board’s consent policy essentially gives the mechanic the right to refuse to cooperate. So
that policy is unenforceable.
B is wrong because the employer doesn’t have adequate information to determine what kind of work, if
any, the mechanic can perform in his current condition. It’s unreasonable to force the employer to rely on
the superficial assessment given by the mechanic’s doctor, which clearly wasn’t made with any knowledge
of the requirements of the mechanic’s job or of the workplace in general.
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C is wrong because, in general, employers do have to comply with workers’ comp board policies, but only
as long as those policies are consistent with the workers’ comp law and regulations. The problem here is
that the board’s policy requiring a worker’s consent to functional assessments is inconsistent with the Act.
So the employer doesn’t have to comply with it.
SHOW YOUR LAWYER
Mount Pearl (City) v. Newfoundland and Labrador (Workplace Health, Safety and Compensation Review
Division), [2006] N.J. No. 350, Dec. 7, 2006
OHS Insider | Bongarde Media Co | 102-501 Main Street, Penticton, BC | V2A 9A6 | Canada | 800.667.9300