Highlights of Noteworthy Decisions

Decision 290 19
09/04/2019
G. Dee
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a right wrist injury in September 2016. In Decision No. 1377/04, the Tribunal found that the worker had entitlement for chronic pain disability resulting from a prior accident in September 1998.

The worker returned to modified work after the 2016 accident but started to lose time with unauthorized absences. The employer terminated the worker's employment in October 2016. The worker appealed a decision of the Appeals Resolution Officer denying ongoing entitlement.
The employer provided suitable modified work. The worker declined suitable employment in the period prior to her dismissal and she should have been in direct contact with the employer about her absences rather than relying on communication between her physiotherapist and the Board, but her conduct was not such as to warrant a conclusion that any wage loss experienced after termination of her employment was not the result of her workplace injury.
An employer may not bring its own co-operation obligations to an end and effectively end a worker's right to LOE benefits by seizing on a short-term failure of the worker to co-operate in return-to-work activities and by terminating the employment relationship.
The worker was not entitled to LOE benefits while the suitable employment was available. When the employer terminated the worker's employment and that work was no longer available, the worker was entitled to further LOE benefits. The appeal was allowed in part.