Highlights of Noteworthy Decisions

Decision 904 14
G. Dee (FT) - J. Blogg - K. Hoskin
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a back injury in January 2010. The employer terminated the worker's employment in September 2010. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after September 2010.

There have been two lines of analysis in Tribunal decisions regarding entitlement to LOE benefits after termination of a worker's employment.
One line of analysis calls for review of the worker's termination to determine whether there was an anti-injured-worker animus involved in the termination. If there was an anti-injured-worker animus on the part of the employer, the worker generally would be entitled to further benefits. If there was no anti-injured-worker animus, the loss of earnings is not attributed to the compensable injury and further benefits would be available.
The second line of analysis emphasizes a determination of whether the injury continues to make a significant contribution to the wage loss and whether the termination was an intervening event that breaks the chain of causation. The worker's conduct is relevant to these inquiries. The Panel agreed with the approach in the second line of analysis that focuses on the worker behaviour prior to the termination.
Following a lay-off or termination of employment, many impaired workers who cannot perform their pre-injury job duties are not able to earn the same wages that they were able to earn with the accident employer. Given that they would not have experienced this wage loss but for the compensable injury, there are strong reasons for determining that these workers have an injury-related wage loss under s. 43(1) of the WSIA, as well as finding that work from the accident employer is not available to them under s. 43(2). The Panel also noted injury-related wage loss that is initiated by ending the employment relationship is recognized in Board policy.
There are, however, circumstances, in which workers who no longer have work available to them from the accident employer and who cannot replicate those earnings with another employer, are still determined not to have an injury-related wage loss. Such circumstances would include post-injury non-compensable health problems, refusing suitable employment and refusing to participate in LMR activity. In those situations, where a worker's LOE entitlement may be determined based on ability to earn wages from "available"work that is not actually available, there is something about the worker's personal circumstances that is responsible for the development of the situation.
The central question in determining LOE benefits after termination is whether the earnings prior to termination should still be considered available to the worker. The focus must be on the actions of the worker and not upon the motivations of the employer. The Panel was of the view that a worker will have introduced an intervening event negating the significance of the compensable injury if the worker's conduct prior to the termination was such that the worker should be held responsible for the loss of the employment opportunity.
In this case, the employer stated that it dismissed the worker for participating in the theft of personal items of a co-worker. However, the Panel noted that the only person providing a statement against the worker must also be regarded as a suspect. That person told inconsistent versions of his own involvement, and he did not appear as a witness at this hearing, so that his statement was unsworn and untested. The Panel concluded that the worker's participation in the theft has not been established.
The worker was unable to perform his pre-injury employment. There was no suitable employment available to him from the accident employer. The worker's conduct was not such that he should be held responsible for the loss of employment availability with the accident employer. The worker was entitled to further LOE benefits and LMR services. The appeal was allowed.