Highlights of Noteworthy Decisions

Decision 312 17
20/03/2017
J. Moore - B. Wheeler - S. Roth
  • Loss of earnings {LOE} (disabled by non-compensable condition)
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a shoulder injury in June 2010, for which the Board granted the worker an 8% NEL award. He returned to work in September 2010, but had a recurrence in August 2011. He participated in a return-to-work meeting with the employer in October 2011, but his employment was terminated after a confrontation between the worker and his manager at the meeting. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after October 2011.

The Panel noted that there is no Board policy addressing the impact of disciplinary termination of employment on entitlement to LOE benefits. There is, however, a substantial body of Tribunal case law on the issue.
At the meeting, the parties had reached an agreement regarding return to work. The manager then questioned whether the injury happened at work. The worker became agitated, stood up and started yelling. The manager came forward, waving his finger at the worker. The worker slapped the employer's arm to move it away. This led to the termination of the worker's employment.
The Panel found that the worker was not the instigator of the altercation. His actions could not be seen as a one-sided repudiation of the ESRTW process. Therefore, the termination of employment did not occur in circumstances that would deprive the worker of ongoing entitlement to LOE benefits if he were otherwise entitled to such benefits.
The worker engaged in job search activity after the termination of his employment. This activity constituted a reasonable self-directed rehabilitation program. The worker was entitled to full LOE benefits after termination of his employment.
The worker was entitled to those LOE benefits until he suffered a serious, non-compensable injury when he fell at home in June 2013. Prior to that fall, the worker continued to look for work. This indicated that the worker felt that he was capable of working. After the fall at home, his condition changed. The fall was a significant intervening event that altered the worker's employability. The worker was not entitled to LOE benefits after June 2013.
The appeal was allowed in part.