The Workplace Safety and Insurance Appeals Tribunal decided in February that an injured worker who was receiving workers’ compensation benefits up to his termination was not entitled to any further benefits as of the date of his termination. Does this seem fair?
The worker was terminated for violating a last chance agreement (he violated a company policy), and the earlier workplace injury did not play a role in the termination of the worker’s employment. Therefore, the tribunal concluded that the worker did not have a loss of earnings as a result of the injury after his termination date, and could receive nothing more.
This decision may seem harsh, and it is interesting to note that there was a dissent in this case that would have seen the worker receive partial loss of earnings benefits until such time as the worker was restored to his full pre-injury earning capacity.
The order of events is important here. First, the worker, a truck driver, was disciplined and signed a last chance agreement. Second, a year later, in January 2008, the worker hurt his arm at work, and had to perform modified work doing truck washing. Third, in February 2008, the worker violated the company anti-scavenging policy, and was terminated for contravening his last chance agreement.
When the worker attempted to receive workers’ compensation benefits for the period after his termination, he was denied.
The worker’s appeal to the Workplace Safety and Insurance Appeals Tribunal was about whether he was entitled to loss of earning (LOE) benefits after February 2008, for an accident occurring in January 2008.
The tribunal found that the worker did not have a loss of earnings resulting from the injury after the termination, so he was not entitled to benefits.
The reason was that workers who are working in suitable employment and whose employment is terminated for reasons unrelated to the injury (in this case, violating a last chance agreement) are not entitled to ongoing LOE benefits. This is consistent with the language of the Workplace Safety and Insurance Act.
Plainly put, the worker’s employment was terminated due to labour relations issues unrelated to the compensable injury. The worker’s loss of earnings did not result from the compensable injury. Thus, he was not entitled to further LOE benefits. According to the tribunal:
The workplace insurance scheme is not intended to provide an alternative forum for pursuing monetary compensation for losses arising from labour relations matters or wrongful dismissal actions.
The dissenting panel member stated that the majority’s decision effectively deemed the worker capable of doing his pre-injury job at no wage loss. However, the evidence did not support that finding. In fact, since the termination, the worker was only capable of working on and off at a number of different lighter jobs for other employers at a wage loss. He was not capable of doing his pre-injury job.
The dissenting member concluded that there was no difference under the Act between a long-term layoff and termination of employment. For layoffs, the Workplace Safety and Insurance Board’s policy requires that the adjudicator look at the work the injured worker was actually doing when he lost his job and deem that job to be his future employment or suitable employment or business for the purpose of determining his entitlement.
According to the dissenting member, the worker should have been granted partial LOE benefits from the date of the termination of his employment that reflected the difference between his pre-injury earnings and the earnings he would likely have earned in the work he was doing when he lost his job. He should have been entitled to the difference between those wages and his pre-injury earnings, until such time as the worker was restored to his full pre-injury earning capacity
What do you think? Should a worker be disentitled to loss of earnings benefits after a termination, even if the worker is doing modified work at a wage loss?
Christina Catenacci
First Reference Human Resources and Compliance Editor
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Thanks for your comment Kerry. I tend to agree with you, and perhaps things would have been decided in the worker’s favour if the termination was without cause.
Christina
I don’t think the article implies the employee considered himself to have carte blanche to break policies due to his injury. Regardless of whether or not he was fired, the duty of the WSIB and the no-fault insurance system is to “make him whole” when he is impaired due to workplace injury. When he is not working, the question doesn’t arise. When he IS working, and at dimished capacity which is reflected in his earnings, I think there is a solid basis for claim, even if he is with a different employer, that an injury sustained on the job resulted in lower earnings (and apparently not the change of job itself), and therefore he’s entitled to the difference between his new job and his last pre-injury position (or comparable market rate, if they are not the same types of employment.)
I wonder if the judgment would have been different had he not been fired for cause? If he had been terminated without cause, or had quit and applied for a new job, would that still be the case?
Thanks for your comment Kait. You highlight the importance of following company policies.
Christina
I agree with this decision. Just because a worker is on modified duty or was injured, does not give them the right to break other company policies and procedures. There would not have been an issue here if the worker had followed protocol.