Highlights of Noteworthy Decisions

Decision 454 21
L. Gehrke - M. Falcone - A. Signoroni
  • Evidence (surveillance)
  • Re-employment (termination)
  • Loss of earnings {LOE} (termination of employment)

On August 22, 2013, the worker, a vehicle inspector, sustained multiple soft tissue injuries when she caught her left foot on a bar bolted to the floor while she was walking.

The employer retained an investigator to conduct video surveillance of the worker daily from September 7 to September 11, 2013. On September 19, 2013 the employer terminated the worker's employment. The reason given was "dishonesty." On the basis of the video surveillance evidence provided by the employer, the Board determined that the worker misrepresented her level of disability and did not co-operate in the work reintegration process. The worker's LOE benefits were terminated effective September 9, 2013.
The worker in this appeal was seeking a determination that the employer breached its re-employment obligations under s. 41 of the WSIA as well as entitlement to LOE benefits from September 9, 2013.
While the Panel admitted the surveillance video, due to technical difficulties the video was not able to be shown during the hearing. The Panel therefore relied on the investigator's written report. The Panel found that, based on this report, the employer terminated the worker for dishonesty and misrepresentation of the level of her injury-related disability. Yet the Panel found that the report did not reveal dishonesty or misrepresentation by the worker about the level of disability resulting from the injury. It found further that the employer's decision to conduct video surveillance of the worker was directly related to the injury.
The Panel concluded that the employer breached its obligation to re-employ the worker under section 41 when the employer terminated her employment on September 19, 2013. The termination was related to the worker's compensable injury on August 22, 2013. Further, the worker was not dishonest and did not misrepresent the level of her disability.
With respect to LOE entitlement, the Panel found that the worker was unable to return to any work after the work accident until September 23, 2013. From that date, while she was able to return to modified duties, there was no suitable work available as of that date due to the termination.
The worker was entitled to full LOE benefits from September 9, 2013 to September 23, 2013. She was also entitled to LOE after that date, the quantum and duration of these benefits being remitted to the Board for further adjudication.
The appeal was allowed.