Highlights of Noteworthy Decisions

Decision 2450 12
S. Netten - A. Lust - A. Signoroni
  • Loss of earnings {LOE} (termination of employment)
  • Board Directives and Guidelines (LOE) (lay-off)

The worker suffered a low back injury in January 2001. He returned to modified work. In Decision No. 1073/08, the Tribunal found that the worker could not work more than two days in a row and that, accordingly, he was entitled to LOE benefits based on ability to work 32 hours per week. In May 2006, the employer terminated the worker's employment after he was criminally charged with two marijuana-related offences. The Board found that the worker continued to be entitled to LOE benefits based on ability to work 32 hours per week. The worker appealed.

Recent Tribunal jurisprudence has consistently held that the primary question in determining entitlement to LOE benefits after termination of employment is whether the compensable injury played a role in the termination. Under this analysis, if a worker is performing suitable work and a subsequent termination is unrelated to the compensable injury, there is no entitlement to LOE benefits because the loss of earnings results from the termination and not from the injury.
There are, however, circumstances in which LOE benefits may be granted after a termination that is entirely unrelated to the compensable injury. The Board policy on entitlement following work disruptions contemplates entitlement following a permanent work disruption, such as plant closure, when the worker's employability is clearly affected by the work-related impairment and associated clinical restrictions.
The worker submitted that this policy was applicable to the appeal. However, the Panel noted that work disruptions are defined in the policy to include a lay-off, a seasonal lay-off, a strike or a lockout, and would, therefore, exclude dismissal in other circumstances. Thus, the policy was not applicable to the facts of this case. Nevertheless, the Panel agreed with the worker that a work disruption is similar to a dismissal for just or unjust cause as it relates to the application of s. 43(1) of the WSIA. The worker submitted that that correct question is whether the injury is a significant contributing factor to the loss of earnings and that a loss of earnings may, in some circumstances, result from both the non-injury-related loss of employment and the work-related injury.
The Panel found that the Board policy on work disruptions may provide guidance by analogy regarding the significance of the injury in the termination of employment.
The Panel considered both analyses in this case.
Regarding relationship of the termination to the compensable injury, the Panel found that the termination was related to the marijuana-related offences and not the compensable injury.
Regarding significant contribution of the compensable injury to the loss of earnings, the Panel found that the worker had demonstrated his employability despite his permanent back impairment. The non-injury-related termination eclipsed the impact of the injury on the worker situation after the termination of his employment. The worker's impairment and associated clinical restrictions were not a significant contributing factor to any reduction in income.
The worker's loss of employment and any post-termination loss of earnings were unrelated to his compensable injury. The worker was not entitled to additional LOE benefits. The appeal was dismissed.