Compensation Café: “Light Duties” – A Primer

Written by: Janet Patterson, WELLS Director

This blog series is meant to cover all things related to Workers’ Compensation. It is managed by one of our WELLS Directors, Janet Patterson.

An injured worker may be asked to sign a form accepting “Light Duties” – right after their injury, in the First Aid room or on the way to the hospital. There is a grim joke about these early “Light Duties” forms coming in two ways: with and without blood stains.

Alternatively, the Light Duties maybe offered to the worker after they have been on claim and away from the workplace for a while.

What does signing the “Light Duties” form mean? What are suitable Light Duties? And when can a worker reasonably refuse them?

I believe that a Light Duties primer for injured workers is necessary.

The nature of Light Duties – how to develop “suitable” duties and how to reasonably refuse them – is set out in policy #34.11. But unfortunately, this is a retroactive policy. The Board does not participate in the development of Light Duties and intervenes only if a worker refuses a Light Duties offer on an accepted claim. In real time, an injured worker has to make an important decision – to accept or refuse Light Duties as they are offered by an employer- and as the Practice Directive[1] warns:

There is no requirement that the worker be made aware of the criteria of policy item #34.11 and the consequences for refusal….…workers do not need to be warned that their benefits may be affected if they choose not to accept a suitable selective/light employment offer.

This blog is longer than usual so here is an outline:

The Light Duties process
The Purpose of Light Duties
How Employers’ Benefit from Light Duties
An Offer must be Specific and Detailed
What are “suitable” Light Duties
1. The work must be safe and within the capabilities of the worker
2. The work must be productive and not demeaning
A refusal of Light Duties must be reasonable
Can I be fired for refusing Light Duties?

1. The “Light Duties” process

In theory, the “Light Duties” process can involve consultations with the worker, employer, physician and union,[2] and a successful arrangement depends on “cooperation”.

In practice, all that is required is that the employer make a detailed offer of “Light Duties” and that the worker accept or refuse that offer. If the offer is refused, the Board then scrutinizes both the offer and the refusal.

Requirements for a valid offer include:

The offer must have sufficient details so that tje worker, and their physician, may assess the suitability of the duties. The offered duties must be available.
The proposed Light Duties must be “suitable” for the worker. This means:
1. The duties must be safe and within the worker’s capabilities; AND
2. The duties must be productive. They must be of value to the employer and not token or demeaning to the worker.

If the worker refuses a Light Duties offer, the reasonableness of their refusal is considered in light of these and other factors.

When deciding whether to accept or refuse Light Duties, workers should also know the financial consequences of the Light Duty process. If an injured worker refuses Light Duties and the Board investigates:

The Board will not pay the worker wage loss benefits from the time of the refused offer to the start of the Board’s investigation. Wage loss benefits are paid while the investigation is being carried out.
If the Board concludes that the worker’s refusal was reasonable, the worker is entitled to wage loss benefits from the date of the Light Duties offer.
If the Board concludes that the worker’s refusal was not reasonable, the Board deems the worker to be capable of earning what they would have earned by accepting the Light Duties offer and “adjusts “the wage rate, effective on the offer date. [For example, if the worker is deemed to have earned full wages on Light Duties, their “adjusted” wage rate will be zero].

These issues are covered in more detail in the Practice Directive.

2. The Purpose of Light Duties for the Worker

“Light Duties” are supposed to be a temporary accommodation of the worker’s injury, before that injury has resolved or plateaued. The arrangement is supposed to allow the worker to gradually recover while maintaining their connection to the workplace.

Because “Light Duties” occur at an earlier point in the worker’s recovery, their intended purpose is different from other employment arrangements. Light Duties should:

reduce the consequences of the injury by aiding in the worker’s recovery. “Suitable” Light Duties must be both safe and unlikely to delay a worker’s recovery. This is different from “suitable” RTW duties (policy #35.21) or “suitable” employment duties for a a loss of earnings assessment (policy#41.00) or a permanent accommodation, AND
reduce the worker’s loss of income during the early stages of a temporary disability. Light Duties are meant to benefit both the worker and the employer. The worker continues to receive full wages from the employer, rather than the temporary wage loss benefit, which is 90% of net earnings. Employers also benefit by reducing the claim costs ascribed to their account.

3. How Employers Benefit from Light Duties

A successful Light Duties arrangement reduces the cost of the worker’s WCB claim. Through the experience rating system, the lower claims cost effectively lowers the employer’s WCB payroll assessments,[3] a financial benefit of such significance that some employers pursue Light Duty arrangements aggressively.

There is an additional benefit to the employer if the worker accepts Light Duties immediately after an injury and takes no time off work.

In these cases, the Board will code the compensation claim as accepted for “health care only” (HCO) and register it as a “no time loss” claim, regardless of the nature of the worker’s injury.[4] These “no time loss” claims can be extremely valuable to the employer since a “time loss claim” is a negative measure of an employer’s safety record for many purposes. In some industries, “time loss claims” even disqualifies an employer from competing for certain contracts. An employer avoids these collateral negative consequences when an injured worker immediately accepts Light Duties, so many of them have a practice of requiring the injured worker to sign forms immediately after an injury.

Recently, this practice has been flagged as being a form of claims suppression. [5]

For many employers, the computation is simple: it is less costly to keep paying an injured worker to stay in the workplace than to incur the financial consequences of a significant “time loss” claim.

It is imperative that despite this financial incentive, employers not be allowed to pressure injured workers into unsuitable Light Duty arrangements, especially ones which prevent their recovery, risk re-injury or endanger their long-term health.

Workers need to know when they can reasonably refuse Light Duties, and what happens if they do.

4. An Offer of Light Duties must be Specific and Detailed.

The Board requires that an offer of Light Duties “must provide sufficient detail to allow the worker and the officer to determine whether the duties are productive, safe, and in keeping with the worker’s capabilities.” And “It is not enough for the employer to simply state that light duties are available or that the arrangement is still under development.” The offer does not have to be in writing.

A recent Review Division decision represents a common situation.

A health care worker was grabbed by a patient and there was an injury to her left wrist and shoulder. Light Duties were not offered and she continued to work full duties until her condition worsened and she went off work. The employer then verbally offered her Light Duties but she refused. The RD found that the employer gave only limited details of the proposed duties such that it could not be determined by the worker or her physician if they were suitable. The worker was found to be entitled to full wage loss benefits from the date of her disablement. (R0283042 (November 8, 2021))

5. What are “Suitable” Light Duties?

The Work Must Be Safe and Within the Capabilities of the Worker

The Practice Directive sets out a process to determine whether the Light Duties that are offered are safe and unlikely to delay recovery. Basically, Board “clinical advisors” (BMA) provide an opinion on whether the worker’s functional capabilities match the offered duties. If the worker’s physician disagrees, the BMA contacts the physician to compare their understandings of the worker’s capabilities and the proposed duties before an officer makes a decision about their suitability.

If worker relies on the recommendation of their physician to refuse Light Duties, such a refusal is often considered reasonable although this is not determinative. The Practice Directive states that the physician should be aware of the specific duties for their opinion to have weight but this is not always the case.

In WCAT A2100596 (September 22, 2021), the worker suffered a crush injury to a finger on his left hand. He continued to work and his claim was accepted for health care only. However, he eventually required surgery to amputate the finger. The employer submitted that the worker was offered suitable Light Duties (that could be done with one hand) right after surgery. WCAT concluded “from a logical and common sense reading” of the post-operative instructions that the worker was not medically able to perform Light Duties for 14 days after the surgery. The panel also stated:

I am not persuaded that policy item #34.11 necessarily requires a physician to consider specific light duties. While it may be preferrable (from an evidentiary standpoint) for a physician to provide a detailed analysis of light duties, I am not persuaded that such evidence is necessary. I note in this regard that the Board’s required form for physicians to complete has merely a tick box and a brief field to type in further information. I also note that policy item #34.11 does not require a physician to provide evidence as to why a worker cannot return to work (in any capacity or on light duties).[6]

Employers may also seek other types of evidence.

In WCAT A2100510 (July 4, 2021), the worker’s right shoulder was injured by a falling 70 pound object. After one month off work, he refused Light Duties, supported by his physiotherapist. The employer hired a private investigator to conduct video surveillance. The WCAT panel considered that the worker’s limitations were most accurately shown on the video and concluded that the worker’s refusal of Light Duties was unreasonable.

2. The Work Must Be Productive and Not Demeaning

For Light Duties to be “productive”, they must jave value to the employer and not be token or demeaning.

Whether or not work is demeaning is subjective and consideration must be given to the larger context of the worker’s usual roles and responsibilities in the workplace[7].

In WCAT A2101053 (July 27, 2021) the worker was a production worker who injured his right arm, rupturing his biceps tendon. After surgery, he eventually agreed to return for Light Duties in a “training” graveyard shift. The “work” required him stand aside and watch another worker operate a machine all night. The worker reported that he “felt like an idiot” standing around and listening to people call him a “lame horse”. The WCAT panel agreed that this was a demeaning task.

The panel also commented that the Light Duty policy does not endorse a “trial and error” approach to Light Duties.

…policy #34.11 does not suggest that there is an expectation on a worker to enter into some sort of negotiation with an employer in terms of making adjustments to the selective/light employment arrangement, or even to face a risk of further injury or a setback in their recovery upon a return to light duties in an effort to determine what may be ultimately suitable for him or her. (page 9)

6. A Refusal of Light Duties Must Be Reasonable

The Board will review the reasonableness of a worker’s refusal of Light Duties in light of the above factors. The Board may also consider factors such as the location and schedule of the duties and the worker’s medications or pre-existing conditions. It may also consider the impact of the Light Duties on the worker’s ability to participate in other tasks (childcare?).

The Board will also consider whether the worker cooperated in the development, management and participation of the Light Duties plan. If the worker refuses to cooperate with the employer to establish viable Light Duties, obstructs an offer or engages in “inappropriate behaviour”, this can be construed as an unreasonable refusal to participate in Light Duties.

Finally, if the employer changes the Light Duties from the original offer (“bait and switch”), the Board will revisit whether the worker’s refusal of the changed duties is reasonable.

7. Can I Be Fired for Refusing Light Duties?

Unfortunately, the Workers Compensation Act does not protect workers from being fired for filing a compensation claim or for exercising compensation rights, such as the right to reasonably object to Light Duties. This is a disgraceful gap in the Act[8].

Workers who are in a union have more protection and are generally free to object to unsuitable Light Duties without risk. Other workers, however, may feel compelled to accept unsuitable Light Duties in order to keep their job. The reality is that a worker feels, and is, very vulnerable after a work injury and given the lack of statutory protection, they have some reason for concern.

A worker who makes a compensation claim, and has it accepted, is better off than a worker who declines to make a claim for fear of retaliation. If the worker loses their job for refusing Light Duties, the accepted compensation claim provides some benefits, especially if the refusal of Light Duties is found to be “reasonable”.

Conclusion

The “Light Duties” forms that workers are asked to sign immediately after an injury are usually just a general offer of Light Duties and can be signed without compromising the worker’s right to refuse unsuitable duties. Unfortunately, many workers think that by signing a general form, they are accepting whatever Light Duties the employer may wish to assign. If you have signed a general form but don’t know what the Light Duties are or don’t agree with the Light Duties, you can write this in on your compensation application, under the “Return to work” information.

Workers have a lot on the line with Light Duties, particularly if their injury is serious or long-term.

In summary

If the offered Light Duties are detailed, suitable, safe, productive and not demeaning, and they will not impede recovery, then the Light Duty arrangement should likely be accepted. They can be a financial benefit to the worker, and a refusal may be considered “unreasonable” (causing a loss of both wages and wage loss benefits).
If the Light Duties do not meet the requirements of #34.11 – that is, the offer is not detailed or the duties are not safe or productive or are demeaning, or the worker’s doctor advises against it, the worker can refuse the offer and the refusal would likely be considered reasonable. If the worker’s refusal is not challenged by the employer, the worker will receive wage loss benefits for the period of temporary disability.
The risk arises when a worker’s refusal of Light Duties is challenged by an employer. At this point, the Board investigates. The risks are:
Wage loss benefits are not paid to the worker from the date of the offer of Light Duties to when the Board begins its investigation. (Benefits are paid for the duration of the investigation).
If the Board concludes that the worker’s refusal was not reasonable, then the worker receives neither wages nor wage loss benefits until their return to work (or the decision is changed on appeal); and
There is no protection from job loss, should the employer retaliate.

I note that workers seem to have a high success rate on appeals of Light Duty arrangements. Employers, like workers, have no guidance in the early stages of Light Duty arrangements and on closer inspection, the arrangements may not be suitable, or the worker’s refusal may be reasonable. But the delay and expense of an appeal is a barrier for many workers.

Workers need better protection and support through the Light Duties process. The Board should not allow the Light Duties option to simply be an opportunity for employers to contract out of the compensation system, at workers’ expense.

[1] Practice Directive #C5-5 Selective/Light Employment. The Board amended this Practice Directive (PD) on December 2, 2019. Although the Board’s policy on Light Duties (#34.11) has not changed, the new PD emphasizes that there must be consideration of the “merits and justice” of the case. This change was prompted by the amendment of Policy #2.20 in July, 2019, to emphasize the role of individual circumstances when interpreting Board policy.

[3] See Assessment Manual: Practice Directive 5-247-3(A)”Experience Rating”.

[4] New Directions, page 151.

[5] Institute for Work and Health, Estimates of the Nature and Extent of Claim Suppression in British Columbia’s Workers Compensation System, June, 2021.

[6] WCAT A2100596, page 3, para. 17.

[7] Practice Directive, p. 4.

[8] New Directions, page 139-142.

Originally published March 4, 2022