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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 233 20
2/27/2020
P. Allen - C. Sacco - S. Roth

  • Re-employment (termination)
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a left hand injury in June 2014. The worker appealed a decision of the Appeals Resolution Officer finding that the employer did not breach its re-employment obligations and that the worker was not entitled to LOE benefits following termination of his employment in August 2015.
The employer terminated the worker's employment for violation of its lock/tag and safety policy. When the worker did not follow the policy, he was immediately suspended and then his employment was terminated. These disciplinary actions were as described in the policy. The termination was not related to the worker's injury. The employer did not breach its re-employment obligations.
There have been two main lines of Tribunal jurisprudence regarding entitlement to LOE benefits following termination of employment. One line of decisions (represented by Decision No. 2520/08I) found that, once the chain of causation was broken by a termination unrelated to the compensable injury, it was not necessary to consider whether the worker continued to have a loss related to the compensable injury. The other line of decisions (represented by Decision No. 925/15) first determines whether the termination was related to the work injury, then assesses if the job duties performed by the worker before the termination constituted sustainable and suitable modified work; if the worker was fired for reasons unrelated to the compensable injury and if sustainable modified work had been provided, it was then necessary to consider whether the chain of causation was broken by non-co-operation; if the worker was not co-operating, further benefits would likely not be in order; if the worker was co-operating, benefits would likely be in order.
The Panel preferred the approach in Decision No. 925/15.
In this case, the employer terminated the worker's employment for failure to apply company policy. However, the worker's actions were not deliberate or egregious; rather, they were based on misunderstanding of the employer's policy. As the worker was terminated for reasons unrelated to the accident and as the employer had suitable modified work, the Panel reviewed whether the worker co-operated with ESRTW. The Panel found that the worker did co-operate with ESRTW. The chain of causation between the compensable injury and the subsequent wage loss was not broken. The worker was entitled to further LOE benefits beyond August 2015.
The appeal was allowed in part.