Highlights of Noteworthy Decisions

Decision 1815 19
20/12/2019
D. Hale - P. Greenside - M. Ferrari
  • Board Directives and Guidelines (re-employment) (penalty)
  • Re-employment (non-compliance) (penalty)

The worker suffered an ankle injury on August 6, 2012. The Board granted full LOE benefits from August 7, 2012, to August 23, 2012. The employer terminated the worker's employment on August 30, 2012. The Board found that the employer breached its re-employment obligations. The Board imposed a penalty on the employer of 52 weeks of the worker's net average earnings. After settlement of a grievance, the employer reinstated the worker on April 22, 2013. The employer appealed a decision of the Appeals Resolution Officer regarding the LOE benefits in August 2012, the finding of breach of re-employment obligations and the amount of the penalty.

On the evidence, the worker was unable to work from August 7 to August 23. He was entitled to full LOE benefits during that period.
The employer breached its re-employment obligations when it terminated the worker's employment shortly after his return to work on August 24.
Board Operational Policy Manual, Document No. 19-02-02, on responsibilities of the workplace parties in work reintegration, provides generally that the re-employment penalty against an employer is based on the worker's actual net average earnings for the year before the injury. The penalty is applied from the date the written notice to the employer comes into effect, which is seven WSIB business days after the date of the written notice. When applying a re-employment penalty, the penalty is apportioned based on the length of the remaining obligation period at the time the breach occurs. The policy further provides that the penalty may be reduced by 50% if the employer subsequently offers suitable work at no wage loss.
In this case, the worker returned to work with the employer at no wage loss in April 2013, about 24 weeks after the written notice came into effect on November 2, 2013. Accordingly, the penalty should be apportioned on this basis.
The employer submitted that the penalty should be further reduced by 50% because it offered suitable modified work at no wage loss. However, the Panel found that the termination of the worker's employer at the end of August 2012 was not reasonable. The employer had relied on non-compliance with its policy regarding medical notes for absence, but the Panel noted that the employer had accepted similar reporting from the worker for other periods. In the circumstances, the Panel did not exercise its discretion to reduce the penalty further.
The appeal was allowed in part.