Highlights of Noteworthy Decisions

Decision 1415 22
21/11/2022
A. Patterson - M. Trudeau - M. Tzaferis
  • Available employment (offer from accident employer)
  • Re-employment (obligation to re-employ)
  • Suitable employment (suitable for worker's capabilities)
  • Early and safe return to work {ESRTW} (cooperation) (employer)
  • Loss of earnings {LOE} (eligibility) (impairment)

The issues under appeal were as follows: a) entitlement to LOE benefits between October 17, 2017, and November 15, 2017; b) whether the employer breached its obligation to cooperate in ESRTW; and, c) whether the employer breached its obligation to re-employ the worker.

The appeal was allowed in part.
The Panel found, on a balance of probabilities, that the accident employer did not have any suitable modified work available. The worker had a loss of earnings related to his compensable right shoulder injury. The worker was entitled to full LOE benefits for the period from October 17, 2017 until November 15, 2017, less time paid during that period as set out in the Record of Employment.
The Panel found that the accident employer did not fail to cooperate in ESRTW. It was noted that both workplace parties communicated with each other. However, it was acknowledged that this communication was not exemplary: the employer did not identify any specific accommodated workplace duties but, instead, suggested that the worker self-accommodate. The worker, for his part, did not communicate any dissatisfaction to the employer with the supervisory duties he assigned himself. Absent any objection from the worker, the employer had reasonable grounds to believe that the worker had identified, and was performing, appropriate self-accommodated work, which he was performing at no wage loss.
The Panel also found that the accident employer did not fail in its obligation to re-employ the worker. The Panel found that the statutory presumption of a connection between the termination of employment and the right shoulder injury had been rebutted (O. Reg. 35/08). The termination of the worker's employment was a consequence of winding down the only project the employer had in Ontario, and was unrelated to his compensable injury.