Reference no: EM133855899

Question

The employer's representative submits that the Board correctly determined that the pre-layoff job duties were suitable and that the worker had voluntarily accepted severance in October 2011. The ARO noted that in October 2011 the employer advised the worker he was being "laid off as part of elimination of his whole shift." The ARO noted that the worker had been performing the shunting job for almost two years "without raising an issue." On this basis, the ARO queried why the worker had accepted the severance "without waiting for review" by the RTWS. With respect, and as discussed below, the Panel has arrived at a different assessment of the evidence. We find the evidence indicates there was no dispute between the employer and worker, that the worker had been performing more shunting, and that the Board had offered RTWS intervention in light of the worker's complaint that the increased shunting was aggravating his shoulder injury. We find the employer interrupted the RTWS intervention process by deciding to eliminate the worker's shift without an offer of further job modifications. We find it was reasonable for the worker to accept the severance offer in these circumstances and the permanent impairment was a significant factor in that decision. In this respect, we find the worker was not performing suitable work at the time of the permanent layoff. Our analysis follows. what is the legal issues at hand? what issues are in dispute?