Highlights of Noteworthy Decisions

Decision 1167 22
K. Jepson - P. Greenside - M. Tzaferis
  • Non-economic loss {NEL}
  • Permanent impairment {NEL}
  • Re-employment (obligation to re-employ)
  • Re-employment (termination)
  • Strains and sprains (ankle)
  • Loss of earnings {LOE} (termination of employment)

The issues under appeal were: a) whether the employer breached its re-employment obligations; b) whether the worker's ankle injury resolved by August 16, 2019, including the question of whether it became a permanent impairment; and, c) whether the worker was entitled to LOE benefits after he was terminated on November 4, 2019.

The appeal was allowed, in part.
The worker was able to continue in his pre-accident job as an IT technician up to November 2019 when his employment was terminated. The Panel did not find that this showed that his ankle injury had resolved, as the nature of the worker's job was such that it did not require a large amount of walking or standing. The medical reporting demonstrated that the work-related right ankle injury had resulted in ongoing symptoms and functional impairment persisting beyond August 16, 2019 and up to the present.
Furthermore, section 41 of the WSIA sets out pre-conditions for the re-employment obligation to apply. It was found that the re-employment obligation applied in this case. The re-employment obligation extends for either two years from the date of injury, or one year after the worker is medically able to perform the essential duties of his or her pre-injury employment (WSIA section 43(7)). The worker's termination fell within the period of the re-employment obligation. If the worker's employment is terminated within six months of the date the employer re-employs the worker, section 41(10) provides that the employer is presumed to have breached its re-employment obligation. An employer can rebut that presumption by showing the termination was not related to the injury. The Panel concluded that the employer had rebutted the presumption. The termination was not related to the injury, but for reasons related to declining sales and revenue, coupled with the worker's lack of seniority relative to the other IT technicians.
Furthermore, the dominant line of Tribunal cases has held that a worker who has an ongoing work-related impairment following termination of employment remains entitled to LOE benefits unless the termination constituted an intervening event that severed the chain of causation. These cases have looked at whether the worker should be held responsible for that intervening event. In this case, the worker was laid off for economic reasons and not for cause, and the employer's decision ended any possibility of ongoing future work with the employer. The Panel found that the worker was potentially entitled to LOE benefits after the November 4, 2019 termination of his employment; however, also found that the question of whether and to what extent the ongoing ankle impairment was the cause of any loss of earnings after November 4, 2019 was best determined by the Board in the first instance.