- Available employment (offer from accident employer)
- Re-employment (termination)
- Loss of earnings {LOE} (termination of employment)
- Work transition plan (eligibility)
The worker received entitlement to benefits for a low back strain and paid LOE benefits from August 20 to 22, 2019. The worker and employer entered into a separation agreement which the worker signed on September 24, 2019. The worker underwent compensable surgery and was later awarded a 21% NEL award. The WSIB denied entitlement to LOE benefits for the period of September 24, 2019 to the surgery date of February 7, 2020. LOE benefits beyond February 7, 2020 were also denied as the worker was not working at that time. The worker appealed these findings to the Tribunal.
The Panel allowed the appeal, in part. The Panel found that the employer took steps to promote the severance package to the worker in the background of the worker's belief that he had an uncertain future with his employer. However, the worker signed the agreement and did not lack the capacity to understand the terms of the agreement. The Panel found that the modified work was a temporary accommodation and that there had been no discussions at that time about the worker needing permanent accommodations. The worker testified that he was capable of performing the modified work. Therefore, when the worker stopped working on September 24, 2019, he left suitable modified work. The worker's loss of earnings after September 24, 2019 to February 7, 2020 was not related to his compensable injury as required under section 43 of the WSIA. The Panel then examined entitlement to LOE benefits after February 7, 2020. Ending the employment relationship was not just an unilateral act on the part of the worker. In the Panel's view, by offering a severance package to an injured worker who needed accommodation for his low back injury and who was still in the early phase of recovery, the employer was taking the position that it no longer wanted to be bound by its obligation to accommodate the worker to the point of undue hardship (see OPM Document No. 19-02-02).The worker's February 7, 2020 compensable back surgery marked a significant deterioration in the worker's condition. The Panel agreed with the reasoning of Decision No. 3131/16, which found that the WSIB erred by basing its decision to deny LOE benefits on whether the worker had actual earnings at the time of his surgery, rather than how the surgery affected his earnings capacity, as determined under section 43(2)(b) of the WSIA. In this case the worker had an ongoing full loss of earnings because he was no longer able to work in suitable employment. The employer did not demonstrate an ability to accommodate the worker's permanent restrictions and instead agreed to end the employment relationship. The worker's loss of earnings was therefore related to his August 15, 2019 compensable low back injury. The worker was entitled to full LOE benefits and work transition services.