Highlights of Noteworthy Decisions

Decision 810 18
I. Mackenzie - E. Tracey - I. Thompson
  • Re-employment (construction industry)
  • Re-employment (non-compliance) (payments)

The worker was a labourer in the construction industry. He suffered a low back injury in November 2010. He returned to modified work, but was laid off by the employer in December 2010. The Board paid full LOE benefits, as the worker was in the acute phase of his injury. LOE benefits ended on March 31, 2011, when the Board determined that the worker was capable of performing the essential duties of his pre-injury job. However, the employer did not re-employ the worker. The Board found that the employer did not breach its re-employment obligations. The worker appealed.

Board Operational Policy Manual, Document No. 19-05-02, on re-employment obligations in the construction industry, provides that the re-employment obligation begins when the employer is notified that an injured worker is medically able to perform the essential duties of his pre-injury work. Following this notification, the employer must offer to re-employ the worker in the first job that becomes available that is consistent with his medical ability to return to work.
There was a slow start to the construction season in 2011. The employer started hiring based on seniority in April 2011. The employer was under the mistaken belief that it could use its regular recall process to meet its re-employment obligations. However, Board policy requires that an injured worker be recalled to the first available position.
The Panel concluded that the employer breached its re-employment obligations.
Section 41(13) of the WSIA provides that, if an employer has not met its re-employment obligations, the Board may make payments to the worker for a maximum of one year, as if the worker were entitled to LOE benefits. Document No. 19-05-04, on re-employment penalties and payments in the construction industry, provides for payments effective from the date the re-employment obligation was breached. The policy establishes the date of breach as seven business days after written notice of the breach. The re-employment payments are issued for up to one year, or the end of the re-employment obligation, whichever comes first. In this case, the re-employment obligation was from March 31, 2011 to March 30, 2012.
In this case, there was no written notice. There was a slow start to the hiring season. There was evidence that the season started in late April 2011. The worker should have been offered a position at that time. Payments would have started seven days after notification of the breach. In the circumstances, the Panel established April 30, 2011, as the appropriate date for the start of payments.
The worker was entitled to payments from April 30, 2011 to March 30, 2012.
The appeal was allowed in part.