Highlights of Noteworthy Decisions

Decision 739 20
J. Dimovski
  • Intervening causes
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a low back injury in August 2014. He went back to modified work and then to regular work. In February 2015, the worker stopped coming into work. The employer sent letters to the worker asking for medical documentation, which the worker never provided. The employer found that the worker abandoned his work. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after February 2015.

The Vice-Chair noted that, in recent years, the Tribunal has attempted to set out a consistent approach in determining entitlement to LOE benefits under s. 43 of the WSIA when a worker's employment with an employer has ended. Decision No. 904/14 described the different lines of reasoning in past Tribunal decisions that "some decisions have found that it is the employer's motivation in terminating the worker and whether that motivation includes an anti-injured worker animus that determines the benefit entitlement issue" while other decisions "focused on the actions of the worker in bringing about the termination as the most relevant factor when determining benefit entitlement." Decision No. 904/14 agreed with the reasoning in the second line of cases, which focused on the worker's actions in bringing about the termination.
The Vice-Chair agreed with the approach adopted by Decision No. 904/14 but indicated that Decision No. 904/14 did not set out the distinctions and tensions in the Tribunal's jurisprudence in relation to such claims and that both lines of cases discussed in Decision No. 904/14 can be used in certain circumstances.
The Vice-Chair found there are two distinct types of reviews involving termination cases arising out of different sections of the WSIA; one, in which, the Board addresses whether an employer has breached its re-employment obligation under s. 41, and the other, wherein an injured worker's employment has ceased and there is a question whether they have entitlement to LOE benefits further to s. 43.
In re-employment obligation breach appeals, s. 41(10) provides in clear and plain language that the focus is on the employer's conduct and motivation in the termination of an injured worker. Thus the Vice-Chair found that in s. 41 claims an "anti-discrimination test" or "anti-injured-worker animus test" still remains an appropriate test to consider while in s. 43 type claims the focus on the worker's conduct is appropriate.
The Vice-Chair also noted that Tribunal decisions have not addressed the statement in Decision No. 708/08R2 that "reinstatement of benefits after the introduction of a significant intervening event will occur only where there has been a material change in circumstances such that an intervening event is no longer a significant factor in that loss of earnings." It is unsettled law as to what circumstances would merit a finding that an intervening event is no longer a significant factor.
In this case, the Vice-Chair found there was no medical evidence to support the worker was totally disabled or that he was incapable of performing modified work. The worker failed to reasonably communicate with the employer and thus prevented the employer's attempt to address any injury-related concerns. Thus, the worker was not entitled to LOE benefits after February 2015.
The appeal was dismissed.