Noteworthy Decisions

WSIAT Decision 233/20—dated February 27th, 2020

Re-employment and loss of earnings related to termination of employment

My office receives inquiries from employers regarding circumstances involving an employee “on a WSIB claim” who violates a safety rule, fails to perform adequately or continues to behave outside the expected parameters set for employees.

Employers want to know, “Can I terminate the relationship?”. Termination is always an option, the question that should be considered is, “What will the cost impact be if I terminate?”. There are a number of factors that require significant evaluation prior to terminating employee—especially if the employee is performing modified duties due to a work injury.

In the WSIAT Decision No. 233/20, the employer had a reemployment obligation (criteria met). The employer severed the employment relationship when the employee violated the company’s lock/tag and safety policy.

The employee appealed to the Tribunal looking for loss of earnings benefits following the termination in August 2015. The date of injury was June 2014.

During the evaluation process, the Tribunal panel considered two different lines of jurisprudence to determine if the employee was entitled to loss of earnings benefits. The two lines are:

1. Was the employee terminated for reasons unrelated to the compensable injury? If not, assess whether there was suitable work available on a sustainable basis that could have continued to be offered but for the termination. If so, then loss of earnings are unlikely. (Decision No. 2520/01IR)

2. Was the employee terminated for reasons unrelated to the compensable injury? Then determine if the job duties performed at the time of the termination are sustainable and suitable. If the employee was let go for reasons unrelated to the compensable injury, then assess whether the employee was cooperating or not in the ESRTW process. If the employee was cooperating, then loss of earnings benefits are likely in order. (Decision 925/15—dated October 1st, 2018)

“On the evidence, the Panel found that the worker's injuries were not a factor in the decision to terminate her employment. The modified work the worker had been performing was sustainable. The chain of causation, as understood within the compensation setting, was not broken by her actions. She did not intentionally or knowingly do anything to contravene her obligations in the ESRTW process. She had a solid 32-year employment history and a 16-year record of working successfully with her compensable condition. Notwithstanding the permissible action of the employer to terminate the worker's employment, the worker did not fail to participate as set out in the WSIA. The worker was entitled to further LOE benefits. The appeal was allowed.”

The Panel in WSIAT Decision No. 233/20 preferred the second line of jurisprudence. They concluded that the employee’s actions were not deliberate or egregious but due to a misunderstanding of the employer’s policy. The Panel found that the employee was not terminated for reasons related to the compensable injury and that suitable modified work was sustainable. The Panel then turned to determining if the employee “cooperated” in the ESRTW process. The Panel found that the employee was in fact cooperating and as such the “chain of causation” between the compensable injury and the subsequent wage loss was not broken. Therefore the employee was entitle to further LOE benefits from the date of termination.

Prior to reaching that decision, the Panel sought assistance from the Tribunal Counsel Office. Here’s what the TOC had to say:

• It is consistent with the wording of ss. 43(1) which requires consideration of whether the worker has a loss of earnings as a result of the injury;

• It is consistent with the significant contribution test applied by the Tribunal to determine matters of causation;

• It recognizes that not every non-compensable intervening event will break the chain of causation between the workplace injury and the subsequent loss of earnings, and that where the chain of causation is not broken, an injured worker should continue to receive entitlement to benefits under the Act if s/he continues to be disadvantaged in respect to an ability to approximate pre-accident earnings;

• In considering the conduct of the worker prior to termination, and whether the worker is responsible for the loss of the employment opportunity, it is consistent with the approach taken by the Tribunal in situations of declining suitable, modified work or refusing to participate in LMR activities and it recognizes both the worker's and the employer's respective responsibilities to the ESRTW process; and,

• It appears to be the approach more commonly endorsed in recent Tribunal decisions addressing this issue.

While employers typically consider the cost implications of termination, the factors to be assessed have now broaden significantly. Reliance on the one step approach set out in WSIAT Decision No. 2520/01R have expanded to a multi-step assessment described in WSIAT Decision No. 925/15.