Highlights of Noteworthy Decisions

Decision 1158 13
J. Josefo
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a knee injury in April 2009. The worker attended the employer's premises on August 7, 2009, concerning return to work. The worker wanted to take August 10 as a holiday, but the employer made clear that it required the worker to work on August 10 and that failure to work on August 10 would result in termination of employment. The worker did not attend work on August 10, and his employment was terminated.

The worker underwent compensable knee surgery on September 11, 2009. The Board granted LOE benefits from September 11 and ongoing, as well as LMR services once the worker achieved MMR in March 2010. The employer appealed.
Defying the employer by failing to work on August 10 was an intervening act. The employer was within its rights to insist on attendance on that day. The worker's employment was terminated strictly and solely because he wrongfully defied the employer. Accordingly, his loss of earnings after August 10, 2009, did not result from the injury. Generally, in such circumstances, the worker would not be entitled to further benefits. The exception is the compensable surgery which the worker underwent on September 11, 2009. The worker was clearly not able to perform even modified work from that date until he achieved MMR in March 2010.
The worker was entitled to LOE benefits for the limited period from September 11, 2009 to March 2010. He was not entitled to LMR services because the ESRTW process was unsuccessful to unco-operative actions of the worker.
The appeal was allowed in part.