Case snapshot
At a glance
- Case
- When Is WSIB Modified Work Not Suitable in Ontario?
- Court / Tribunal
- Workplace Safety and Insurance Appeals Tribunal
- Citation
- 2026 ONWSIAT 1038 ↗
- Date
- September 11, 2026
- Area of law
- Employment Law
- Key issue
- Whether a graduated modified bottle-inspection job offered to a worker with a low back injury was suitable work, and therefore whether she should have received full rather than partial loss of earnings benefits for two periods in 2024.
- Outcome
- The Tribunal allowed the worker's appeal, found the modified work unsuitable, awarded full loss of earnings benefits for both periods, and returned the nature and duration of resulting benefits to the WSIB for further adjudication.
- Why it matters
- Injured workers placed on modified duties that keep causing pain, or that only work because a co-worker does the heavy tasks, may be able to challenge a WSIB decision paying only partial benefits.
Legal principle
The rule from this case
Under the WSIB policy the Tribunal applied, a worker who can do some work is generally entitled to full loss of earnings benefits when no suitable work is available, as long as the worker co-operates in health care and the return-to-work process. Suitable work must be safe, productive, consistent with the worker's functional abilities, and restore pre-injury earnings as much as possible. In this decision, the Tribunal held that a job fails the suitability test when it conflicts with the worker's medical restrictions, keeps causing the injury-related pain and absences, or depends on another employee doing the tasks the worker can no longer do. When the modified work is unsuitable, the worker's earnings shortfall is not limited to partial benefits based on the hours the return-to-work plan says she should be working.
Important limits
What this does not mean
This decision does not mean that any modified job involving a helper, or any job that causes some discomfort, is automatically unsuitable. The Tribunal's findings rested on specific evidence: an omitted bending restriction, a stool that led to constant bending, repeated absences, a July 2024 meeting called to improve suitability, and a co-worker performing all other essential duties. It also does not decide what benefits the worker receives after August 12, 2024. The Tribunal sent the nature and duration of benefits flowing from its decision back to the WSIB. And the policy the Tribunal relied on ties full benefits to the worker's co-operation in health care measures and the return-to-work process.
What makes WSIB modified work suitable in Ontario?
Under the WSIB policy the Tribunal applied, suitable work is post-injury work that is safe, productive, within your functional abilities, and restores your pre-injury earnings as much as possible. A modified job has to meet all of those requirements, not just some of them.
That was the central issue in Decision No. 587/26, 2026 ONWSIAT 1038 (CanLII), a September 2026 ruling of the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The Tribunal found that a modified bottle-inspection job offered to an injured packer was not suitable. It awarded her full loss of earnings (LOE) benefits for two periods in 2024, instead of the partial benefits the WSIB had paid.
The Tribunal took its definition from WSIB Operational Policy Manual Document No. 19-02-07. Under that policy, productive work means tasks that give the employer’s business an objective benefit and that are performed for the whole shift. Safe work includes work that should not cause re-injury or a new injury.
What happened when the injured worker tried modified duties?
The worker hurt her low back on the job and started a graduated modified-work plan, but pain kept her from increasing her hours as scheduled. She had been with the employer for 22 years when, in September 2023, she lifted a box of bottles weighing about 40 pounds and felt low back pain.
She received full LOE benefits until mid-January 2024. She then began visually inspecting plastic bottles, with her hours set to step up every few weeks until she reached full eight-hour shifts. She could not get past roughly three or four hours per shift. Her scheduled hours were cut back several times, and she missed days because of back pain.
At an April 2024 return-to-work meeting, she was told the employer would pay only for hours worked and the WSIB would pay partial LOE based on the plan. An orthopaedic specialist later found she had reached maximum medical recovery, set permanent restrictions, and recommended a chair with back support. She was also granted a 24% non-economic loss benefit for her low back.
The WSIB, and then an Appeals Resolution Officer, found the job suitable and upheld partial benefits. The worker appealed.
Can you get full WSIB loss of earnings benefits while on modified work?
Yes. In this case, the Tribunal held that because the modified work offered was not suitable, the worker was entitled to full LOE benefits for those periods.
The Tribunal explained that under section 43 of the Workplace Safety and Insurance Act, 1997, LOE payments are 85% of the difference between a worker’s pre-injury net average earnings and what the worker earns or is able to earn in suitable employment after the injury. To receive these payments, workers must co-operate in health care measures and early and safe return to work.
WSIB Operational Policy 18-03-02 says a worker is generally entitled to full LOE when the injury prevents any work, or when the worker can do some work but no suitable work is available, provided the worker co-operates in health care and the return-to-work process. The Tribunal highlighted the no-suitable-work part of that policy. That meant the full-versus-partial question turned on whether the job fit the worker’s restrictions.
Why did the Tribunal find the modified job was not suitable?
The Tribunal found the job conflicted with the worker’s restrictions, was not safe for her, and was not productive in a sustainable way. Each finding was tied to specific evidence.
It did not match her restrictions. Her specialist limited repetitive bending and twisting of the low back to occasional. The Tribunal noted that the employer’s letter listing her restrictions left that bending limit out. At a July 2024 meeting, the worker reported she was bending to do her duties and was in constant pain. The Tribunal concluded the stool was likely not at a height that let her work without constant bending.
Later changes did not cure the problem. The employer said its stool followed WSIB recommendations. After the July meeting, it offered several chair options, let her alternate sitting and standing, and allowed short breaks in a nearby first aid room where she could lie down. The Tribunal still found the work unsuitable through her attempted return in mid-July 2024, when she reported dizziness and shaking in her hands and feet and was taken to hospital by ambulance. She did not return to work afterward.
It was not safe. The Tribunal found the work kept causing back pain and frequent absences. It also pointed out that the July meeting had been called specifically to try to make the job more suitable.
Does an employer providing an assistant make modified work suitable?
Not necessarily. Here, the assistant arrangement was one of the reasons the Tribunal found the work was not productive.
A co-worker handled the lifting and the other essential tasks, so two people were doing the job the worker used to do alone. The Tribunal found this did not provide the objective business benefit the policy requires, and it doubted the arrangement could last over the long term.
The Tribunal did not fault anyone for trying. It commended both the employer and the worker for their willingness to attempt the arrangement. Good-faith accommodation, however, was not enough on its own to make the work suitable under the policy.
The Tribunal ordered full LOE benefits from February 2 to April 9, 2024, and from April 22 to August 12, 2024, and declared the modified work unsuitable. It returned the nature and duration of further benefits to the WSIB for adjudication.
Questions and records to discuss with a lawyer
- Your medical restriction reports, and whether every restriction (including bending, twisting, sitting and standing limits) appears in the employer’s written modified-work offer.
- Return-to-work meeting notes and WSIB memos recording your concerns about your chair, workstation or duties.
- A record of scheduled hours compared to hours actually worked, and the medical reasons for any missed days.
- Which tasks you personally perform during a shift, and which are handled by a co-worker.
- WSIB decision letters, reconsideration letters and Appeals Resolution Officer decisions on your LOE benefits, including any appeal timelines stated in them.
How can a lawyer help with a workplace injury and return-to-work dispute?
A lawyer can review whether the modified work you were offered lines up with your documented restrictions and the suitability factors the Tribunal applied. Workplace injuries often raise related employment questions, which is where our Ontario employment lawyers can help you understand where you stand. This appeal was heard by videoconference from Toronto, and workers in the GTA can learn more through our Toronto employment law team.
If you are dealing with modified duties, reduced WSIB benefits or a return-to-work plan that is not working, you can contact UL Lawyers through our connect page to discuss your own circumstances.
This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.
FAQ
Frequently asked questions
Partial LOE benefits are based on 85% of the difference between your pre-injury net average earnings and what you earn or are able to earn in suitable work after the injury. Under the WSIB policy applied in this decision, full LOE is generally available when the injury prevents any work, or when no suitable work is available, provided the worker co-operates in health care and the return-to-work process.
Under the WSIB policy the Tribunal applied, yes. Productive work means tasks that give the employer an objective business benefit and fill the worker's whole shift, and in this case the Tribunal found a job that relied on a co-worker doing the lifting was not productive or sustainable.
In this case the WSIB paid partial benefits based on the plan's scheduled hours even though the worker could not keep up with them. The Tribunal overturned that result because it found the modified work itself was not suitable, so full benefits were owed for the periods under appeal.