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Worker’s appeal for loss of earnings benefit denied, permanent disability award affirmed

by HR Law Canada

In a recent Workers’ Compensation Appeal Tribunal (WCAT) decision out of British Columbia, a steel forming operator who sustained a left shoulder impingement syndrome from lifting a sheet of metal with a pry bar on May 12, 2020, was found not entitled to a loss of earnings benefit, though he did receive a permanent disability award.

The Workers’ Compensation Board had accepted his condition as a permanent impairment, and it was determined that, effective May 20, 2020, his disability constituted a 12.623% total disability, leading to a retroactive payment of $15,824.61 and monthly disability benefits of $643.17 starting August 2022.

However, the worker’s claim for loss of earnings benefits was denied, as he had successfully returned to work in an accommodated position that restored his pre-injury earnings.

The issue on appeal was whether the accommodated job provided by the employer was suitable and available long-term to maintain the worker’s pre-injury earnings. The WCAT confirmed that the accommodated position was suitable and reasonably available in the long term, emphasizing that the worker’s loss of earnings after suspension and dismissal from employment was due to reasons unrelated to his compensable injury.

The WCAT, relying on medical opinions and the worker’s own account, concluded that the physical demands of the modified duties were within his capabilities post-injury. It was noted that the worker believed his employer would have permanently accommodated him had he not been terminated, a fact which supported the finding that the job was reasonably available to him over the long run.

Furthermore, the worker’s appeal to connect his termination from employment with his compensable condition was rejected. The tribunal clarified that the worker provided two separate instances of misconduct that could justify the termination and found no evidence linking the dismissal directly to his compensable injury.

In summary, the WCAT’s decision underlines the intricacies involved in determining the suitability and availability of accommodated employment post-injury, emphasizing the need to separate employment issues unrelated to the compensable condition. The worker’s ongoing entitlement to benefits for his established permanent disability was affirmed, while the claim for loss of earnings benefits, tied to employment termination unrelated to the injury, was denied.

For more information, see A2300731 (Re), 2024 CanLII 22763 (BC WCAT).

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