Highlights of Noteworthy Decisions

Decision 1543 22
E. Kosmidis - P. Greenside - I. Thompson
  • Arising out of employment (takes self out of employment) (breach of agreement with employer)
  • Availability for employment (termination)
  • Available employment (offer from accident employer)
  • Credibility
  • Evidence (inconsistencies)
  • Intervening causes (conduct of worker)
  • Loss of earnings {LOE} (cooperation)
  • Loss of earnings {LOE} (termination of employment)
  • Suitable employment (modified duties)

The sole issue in this employer appeal was whether the worker was entitled to receive Loss of Earnings (LOE) benefits from December 12, 2017 to June 9, 2019.

The appeal was allowed, in part.
The Panel noted that an employer's decision to terminate is not determinative of a worker's entitlement to wage loss benefits. The Panel must consider whether there is a loss of earnings as a result of the injury, which requires a two step analysis (Decision No. 690/07). An intervening event will break the chain of causation between injury and loss where the new event renders the role of the injury insignificant. Such an effect occurs where the worker's conduct amounts to a repudiation or fundamental breach of the employment contract, which includes conduct that is inimical with the worker's essential duties. An employer's decision to terminate employment for reasons unrelated to a compensable injury does not constitute such an intervening event in and of itself. However, it must be determined whether the circumstances suggest that the worker has introduced an intervening event that negates the significance of the compensable injury.
In this case, the worker, who had been seriously and permanently injured by an individual, made a threat to harm or kill the person responsible. The worker declined to participate in the employer's investigation after he became aware of the allegations. It was noted that the worker could have addressed these allegations with the employer at that time, and come forward to assure the employer that he would abide by the workplace policies on violence and harassment, which he was aware of. The worker did not. In the Panel's view, the accident employer, who is legally responsible for ensuring the safety of workers, had no choice but to eliminate what it reasonably perceived as a significant safety risk. Accordingly, the suitable and sustainable modified work that the worker had been performing was no longer available to the worker.
The worker's conduct in threatening to harm or kill another worker was conduct that was inimical with the worker's essential duties and amounted to a repudiation of the employment contract. As of December 12, 2017, the compensable injury no longer contributed to the worker's ongoing wage loss. The worker's repudiation of his employment contract was responsible for the loss of modified work and his loss of earnings. However, the Panel found that the worker was entitled to LOE benefits for his two surgeries along with the normal recovery period, as the worker was cooperating in health care measures and would have been unable to perform the suitable and sustainable modified work offered by the accident employer.