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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1682 13
12/4/2013
S. Sutherland - B. Wheeler - A. Grande

  • Loss of earnings {LOE} (termination of employment)

The worker was a team truck driver, together with her husband. She sustained multiple injuries in a motor vehicle accident in September 2006, for which she underwent a cervical laminectomy and instrumented fusion. She returned to work in July 2007. There were two more motor vehicle accidents, in October 2007 and January 2009. The employer terminated the employment of the worker and her husband in February 2009, for performance reasons. As noted in Decision No. 893/13, there have been two approaches in Tribunal case law on the issue of LOE benefits after termination of employment. In one approach, even if the termination is unrelated to the injury, it is still necessary to enter into a secondary analysis to determine whether the termination negates the significance of the compensable injury in the worker's subsequent loss of earnings. In the other approach, there is no secondary analysis; if the termination is unrelated to the injury, the worker is not entitled to LOE benefits. Decision No. 893/13 preferred the first approach. The Panel in this case also preferred the first approach that requires the secondary analysis of the circumstances surrounding the termination to determine whether the termination broke the chain of causation between the injury and the subsequent loss of earnings. In this case, the worker had returned to work after the 2006 accident but driving a truck was not a suitable occupation for her because of her fused neck. The husband was driving at the time of all three accidents, so that the accidents could not be considered the fault of the worker. The Panel concluded that the termination of employment was not an intervening event that broke the chain of causation. The worker's employability was clearly affected by her residual permanent impairment. The Panel concluded that the worker was entitled to LOE benefits after the termination of her employment.