Policy
WorkSafeNB recognizes early and safe return to work as being therapeutic. To that end, WorkSafeNB supports early and safe return to work, including assisting the worker and employer in identifying suitable work following a workplace injury.
WorkSafeNB may need to determine suitable work in relation to:
- An employer's duty to re-employ an injured worker by offering accommodated, suitable work when the worker is unable to perform the essential duties of their pre-accident employment; and
- An injured worker's obligation to cooperate with early and safe return to work when the accident employer offers suitable work.
In instances where the worker is not re-employed by the accident employer, and the worker has a permanent work restriction, WorkSafeNB will then identify a suitable occupation that worker has the capability to perform.
WorkSafeNB may need to determine suitable occupation in relation to:
- Identifying appropriate workforce re-entry services (see Policy 21-400 Rehabilitation); and
- Determining estimated capable earnings when calculating loss of earnings benefits payable.
When considering a suitable occupation for the purposes of determining a worker’s estimated capable earnings, the worker’s capacity to work and earn in a suitable occupation is the relevant factor rather than a specific job opportunity or the securing of an actual job.
Interpretation
Suitable Work with Accident Employer
- WorkSafeNB determines suitable work, in consultation with the worker, as work that is within the worker's capability based on their:
- Abilities or limitations in relation to the compensable injury, as determined by WorkSafeNB; and
- Employment qualifications as accepted by WorkSafeNB.
- WorkSafeNB typically determines if the worker is medically able to perform suitable work based on a description of the work being offered, including the physical requirements, and medical information related to the worker's physical restrictions. See Policy 21-113 Decision-making.
Suitable Occupation for Workforce Re-entry Services and Determining Estimated Capable Earnings
- WorkSafeNB determines a suitable occupation to be an occupational category at the unit group level which has been identified as being appropriate for the worker’s capability.
- WorkSafeNB determines suitable occupation exists in the labour market if it is within:
- The injured worker's local or surrounding area;
- The province of New Brunswick; or
- An adjacent province when WorkSafeNB determines it is practical.
- WorkSafeNB determines a suitable occupation when developing a workforce re-entry plan.
- WorkSafeNB develops a workforce re-entry plan and bases the employment goals on a suitable occupation the injured worker:
- Has the transferable skills to perform; or
- May reasonably develop the skills to perform.
- If there is a workforce re-entry plan, WorkSafeNB will use the suitable occupation identified in the plan to establish estimated capable earnings, whether the plan is completed or comes to an end. If the information used in planning the workforce re-entry activities has changed, the suitable occupation and associated estimated capable earnings will be based on the worker’s earning capacity at the conclusion of the plan (whether completed or not) rather than the earning capacity originally anticipated by the plan.
- In cases where a workforce re-entry plan has not been developed, or it is not appropriate to develop one, WorkSafeNB uses the same guidelines contained in this section to determine a suitable occupation to establish estimated capable earnings.
- WorkSafeNB will establish estimated capable earnings in instances where:
- The worker does not secure employment; or
- The worker has engaged in employment that fails to maximize earning capacity.
- Benefits may be suspended or cease in accordance with Policy 21-214 Determining Continued Eligibility for Loss of Earnings Benefits in instances where:
- An injured worker does not participate in a rehabilitation plan (such as Workforce re-entry) which WorkSafeNB considers necessary;
- An injured worker does not cooperate in their own early and safe return to work by not accepting suitable work; or
- A personal condition not related to the injury or a circumstance not related to the injury becomes of the worker's inability to work.
Workers’ Compensation Act (WC Act)
34(2)(h.1), 38.1(1), 38.101(2)(4)(6), 38.11(2), 38.11(12), 38.11(14)(a)(c)(d),
41.2(b)(c), 42.4(1), 42.4(2), 42.4(4), 42.4(5), 42.5(1), 42.6(1)(b), 42.6(2)(b), 42.6(3), 43
Estimated capable earnings – the earnings that represent the amount a worker is capable of generating in a suitable occupation following a workplace accident, based on labour market information for New Brunswick.
Suitable work – appropriate work that a worker who suffered an injury by accident is capable of doing, considering the worker’s functional abilities and employment qualifications and that does not endanger the health, safety or well-being of the worker. (WC Act)
Suitable occupation – an occupation which is consistent with the worker’s physical and cognitive ability, employment qualifications, reasonably exists in the labour market, and may reflect any sponsored training done as part of the worker’s rehabilitation.
Unit group – an occupational category used in the National Occupational Classification (NOC) to represent a given occupation or a set of different occupations falling in the same broad occupational category and skill level and with very similar duties and employment requirements.
