- Loss of earnings {LOE} (termination of employment)
- Loss of earnings {LOE} (mitigation)
The worker sought entitlement to Loss of Earnings (LOE) benefits following the termination of his employment on April 21, 2014. The worker injured his low back and neck. The worker's Non-Economic Loss award was set at 14%. At the time of his injury, the worker was working as a window installer in a business that had been founded by his grandfather but which, upon becoming insolvent, had been purchased out of receivership by the wife of the worker's uncle in 2010.
The appeal was allowed.Tribunal case law has established that the legal test for determining whether, following a termination from employment by the accident employer, the pre-termination earnings are to still be considered available to the worker requires an examination of the worker's conduct prior to the termination, and assessing whether that conduct resulted in the loss of the employment opportunity. The Panel determined that the reasons for the worker's termination were primarily related to both a very difficult employment relationship that pre-existed the workplace accident as well as the worker's reduced ability to perform his pre-injury job duties as a result of his injury. The worker was paid LOE benefits based on a finding that he continued to be able to earn the wages he was earning with the accident employer despite the fact that those earnings were no longer actually available to the worker.The worker was employed in a very tenuous employment relationship which was complicated by intergenerational family disagreements. The employer was also a small employer without a demonstrated ability to provide modified employment on a continuing basis for production workers with permanent impairments. In addition, the worker's misconduct had not been established by the evidence. The worker's unwillingness to sign a non-disclosure agreement was a continuation of the worker's pre-accident position and did not amount to unreasonable conduct by the worker in the circumstances of this claim. In the case Evans v. Teamsters Local Union No. 31 it was stated: "Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity…The critical element is that an employee "not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation..." The worker's employment atmosphere was clearly characterized by hostility. It was not reasonable to expect the worker to continue to work in that environment for the remainder of his working life in order to mitigate his injury related wage loss. The worker's employability had been affected by a permanent impairment. It was appropriate that his loss of earnings that may have been caused by his workplace injury be compensated under the provisions of section 43 of the WSIA.