- Early and safe return to work {ESRTW} (cooperation)
- Loss of earnings {LOE} (termination of employment)
The worker suffered an arm injury in November 2004, for which the Board granted the worker a 19% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits following termination of her employment in September 2005.
There are two lines of Tribunal decisions regarding entitlement to LOE benefits (and LMR services) after termination of employment. The first approach (exemplified by Decision No. 2520/01IR) focuses on whether the termination was related to the injury. If the termination was not related to the injury, the decision-makers consider whether there was suitable work available on a sustainable basis that could have continued to be offered to the worker but for the termination. The second approach (exemplified by Decision No. 690/07) requires a two-step analysis to determine whether the injury continued to make a significant contribution to any continuing loss of earnings and whether the worker remained disadvantaged in ability to match pre-injury earnings.The Panel considered both approaches. The Panel did not follow either approach in its entirety, although its approach was closer to that in Decision No. 690/07.Rather, the Panel took the following approach: first, determine if the termination was related to the work injury; secondly, assess if the job duties performed by the worker before the termination constituted sustainable and suitable modified work; if the worker was fired for reasons unrelated to the work injury and if sustainable modified work had been provided, determine whether the worker had broken the chain of causation by not co-operating in ESRTW measures or if the worker had been participating in such measures; if the worker was not co-operating, further benefits would likely not be in order; if the worker was co-operating, benefits would likely be in order.Under s. 43(3) of the WSIA, a worker is entitled to LOE benefits if the worker is co-operating in ESRTW. From the employer's perspective, a worker has ceased to co-operate when that worker is fired. However, the statute requires a broader consideration. Section 43 also contemplates the worker's volitions and actions. An injured worker can frustrate ESRTW efforts in a number of ways that would cause suspension of benefits, such as refusing suitable work, being absent from the workplace or stealing from the employer. However, if the worker did not fail to co-operate, there exists a loss of earnings flowing from the injury and the termination does not break the chain of causation.On the evidence, the Panel found that the worker's injuries were not a factor in the decision to terminate her employment. The modified work the worker had been performing was sustainable. The chain of causation, as understood within the compensation setting, was not broken by her actions. She did not intentionally or knowingly do anything to contravene her obligations in the ESRTW process. She had a solid 32-year employment history and a 16-year record of working successfully with her compensable condition. Notwithstanding the permissible action of the employer to terminate the worker's employment, the worker did not fail to participate as set out in the WSIA.The worker was entitled to further LOE benefits. The appeal was allowed.