Highlights of Noteworthy Decisions

Decision 1087 21
V. Marafioti - P. Greenside - J. Provato
  • Loss of earnings {LOE} (termination of employment)

The worker, a welder, was granted entitlement for injuries to his upper back and right shoulder sustained in January 2016. He returned to light duties with the employer, but was terminated for cause in November 2017 for violating company policies. The employer appealed a decision of the Appeals Resolution Officer that the worker was entitled to LOE benefits after his termination.

The appeal was dismissed.
Tribunal decisions have taken different approaches regarding entitlement to LOE benefits following termination. The first approach focuses on whether the termination was related to the injury. If the termination was not related to the injury, the decision-makers consider whether there was suitable work available on a sustainable basis that could have continued to be offered to the worker but for the termination. The other approach requires a two-step analysis to determine whether the injury continued to make a significant contribution to any continuing loss of earnings and whether the worker remained disadvantaged in ability to match pre-injury earnings.
While it was within the employer's rights to terminate the worker for cause, the worker's conduct did not need to be measured against a standard defined by common law or application of labour relations concepts or wrongful dismissal criteria. Termination of employment cannot be determinative of a worker's entitlement to benefits. Entitlement to LOE falls under section 43 of the WSIA.
No matter which particular stream of approach from Tribunal cases was taken, a crucial question was whether the job duties performed by the worker prior to termination constituted sustainable and suitable modified work. If there was no suitable and sustainable work upon termination, LOE benefits were in order.
In this case, the employer did not have suitable and sustainable work available prior to termination, and the worker remained disadvantaged in his ability to match his pre-injury earnings. He was therefore entitled to LOE benefits.