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Glass installer who was terminated after workplace injury awarded loss of earning benefits by Ontario’s WSIB

by HR Law Canada

A glass installer who suffered a low back and neck injury has been awarded loss of earnings benefits by the Ontario Workplace Safety and Insurance Appeals Tribunal after he was terminated.

The worker suffered the injury in a lifting accident on Aug. 27, 2013, while working for a business previously owned by his family. Despite returning to modified duties after the accident, the tribunal found that the employment relationship was strained both before and after the injury.

Initially, the Workplace Safety and Insurance Board (WSIB) concluded that the worker’s entitlement to LOE benefits would end by April 7, 2014, anticipating his full recovery. However, the worker was terminated shortly after, on April 21, 2014. A previous decision by the Appeals Tribunal in May 2020 recognized that the worker had not fully recovered from his accident and continued to be impaired, leading to an assessment for a Non-Economic Loss (NEL) award, which was set at 14%.

The worker initially challenged the WSIB’s decision regarding the employer’s re-employment obligation but later withdrew this appeal. The key issue was whether the worker was entitled to LOE benefits after his termination. The Tribunal’s analysis focused on the worker’s pre-injury earnings compared to his potential earnings following the accident.

The Tribunal found that the worker’s termination was primarily due to a difficult employment relationship and his reduced ability to perform pre-injury job duties.

The evidence suggested that the worker’s termination was partly motivated by his workplace injury and that it was unlikely the employment relationship would have continued, especially considering his permanent impairment.

In conclusion, the Tribunal determined that the worker’s post-injury earnings should be assessed based on his potential earnings in the general labor market, rather than his pre-termination earnings with the accident employer.

The worker has been granted entitlement to LOE benefits beyond April 21, 2014, with the WSIB instructed to determine the specific level of his entitlement, subject to usual rights of appeal.

For more information, see Decision No. 870/23, 2023 ONWSIAT 1590 (CanLII).

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