Highlights of Noteworthy Decisions

Decision 893 13
S. Ryan
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a low back injury in June 2002, and a right shoulder injury in November 2004. The Board granted an 11% NEL award for right shoulder impairment. In Decision No. 248/05, the Tribunal found that the worker had a permanent low back impairment. The Board then granted a 12% NEL rating for the low back.

In August 2009, the worker's employment was terminated due to an unproven allegation that he was sleeping on the job. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits and work transition services after August 2009.
There are two different approaches in Tribunal decisions on the issue of entitlement to LOE benefits following termination of a worker's employment. Both approaches examine the circumstances surrounding the termination to determine whether there is a causal link between the termination and the injury. One approach finds that, 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. The other approach does not enter into the secondary analysis. According to this approach, if the termination is unrelated to the injury, the worker is not entitled to LOE benefits.
The Vice-Chair preferred the reasoning of the first approach, finding that s. 43 of the WSIA requires the secondary analysis of the circumstances surrounding the termination of employment to determine whether the termination breaks the chain of causation between a worker's injury and the subsequent loss of earnings.
In this case, an Employment Standards Officer under the Employment Standards Act investigated and found that the employer failed to produce evidence to refute the worker's claim that he was on an approved break when he was found sleeping. A settlement was reached in which the employer agreed to amend its records to reflect that the worker's employment was terminated due to lack of suitable work. Although the Tribunal was not bound by the original decision of the Employment Standards Officer or by the settlement, the Vice-Chair found the settlement to be persuasive evidence that the compensable injury played a role in the termination of the worker's employment.
The worker was entitled to full LOE benefits from August 2009 until he found employment in January 2011. However, the worker was not entitled to a work transition services. The worker's new employment was at a significant wage loss but, considering the worker's circumstances, the Vice-Chair found that his earnings reflected his earning capacity in the open market and that his earning capacity would not likely be improved by work transition services.
The appeal was allowed in part.