Ontario’s Workplace Safety and Insurance Appeals Tribunal (WSIAT) has ruled that a worker is entitled to full loss of earnings (LOE) benefits from Dec. 7, 2018, to Oct. 3, 2019, despite being terminated from his employment.
The decision highlights the Tribunal’s stance on workers’ entitlement to benefits when suitable work is not available post-termination due to the seriousness of their injury.
Background
The worker, a 39-year-old water well technician employed since 2005, sustained a right shoulder injury on Nov. 12, 2018, while attempting to cut a lock using bolt cutters. He reported the injury to his supervisor and sought medical attention the same day. An emergency room doctor advised him to “avoid above shoulder and light weight not able to bend/twist, climb, lift, push pull use of upper extremities,” yet noted he was fit for regular work.
Despite his injury, the worker continued performing modified duties, partly due to his recent return from a non-work-related knee injury that had kept him off work from September 2017 to October 2018. He expressed reluctance to take further time off, fearing for his job security. On Dec. 6, 2018, the employer terminated his employment, citing multiple violations of company policy.
WSIB accepted claim
The Workplace Safety and Insurance Board (WSIB) accepted the worker’s injury for health care benefits but declined to pay LOE benefits beyond his termination date. Initially, the WSIB also denied entitlement to shoulder surgery performed on Oct. 3, 2019. However, an Appeals Resolution Officer (ARO) later allowed the surgery, and the WSIB granted LOE benefits post-surgery up to Dec. 3, 2019.
The worker appealed the WSIB’s decision not to award LOE benefits from his termination date to his surgery date. The key issue was whether the worker was entitled to LOE benefits during this period, considering his termination and the availability of suitable work.
The Tribunal’s decision
In its decision, the Tribunal found that the worker was entitled to full LOE benefits under section 43 of the Workplace Safety and Insurance Act, 1997 (WSIA). “The worker is entitled to full loss of earnings (LOE) benefits from December 7, 2018, to October 3, 2019, due to the nature and seriousness of the injury and because he was co-operating in appropriate health care measures,” the Panel said.
The Tribunal questioned the availability and sustainability of suitable modified work post-termination. Evidence suggested that the employer had provided modified work only for 5 to 7 days after the injury. A memo dated Jan. 17, 2019, indicated the employer believed the shoulder injury had resolved and that they had offered limited modified duties.
The Tribunal also considered the worker’s medical condition. The emergency room doctor had imposed significant restrictions immediately after the injury. The worker’s family physician, Dr. S.C., noted on Dec. 4, 2018, that the worker’s shoulder pain was worsening. Although the doctor initially stated the worker could continue with regular duties, the worker explained he feared losing his job if he took time off or requested further restrictions.
By Dec. 18, 2018, Dr. S.C. declared the worker “will be unable to work for an unknown period of time due to a right shoulder and arm injury until further investigations and assessments are done to determine a diagnosis and management.” A physiotherapy assessment on Dec. 19, 2018, reported a QuickDASH Disability score of 86.4, indicating severe disability.
The Tribunal noted, “We find that the worker had significant restrictions to his shoulder from the date of the accident to the date of the termination and beyond.” It further stated, “Given the restrictions in place as of November 15, 2018, we find the worker was not capable of his regular job duties.”
Employer’s accommodation efforts
The employer’s willingness to accommodate the worker was also scrutinized. The Tribunal referenced an employer’s letter from Oct. 2, 2018, which stated, “Given the constraints imposed by your physician it may not be possible to employ you on a full-time basis.” This raised concerns about the sustainability of any modified work that might have been offered.
The Tribunal concluded that even if suitable modified work had been available, it would not have been sustainable. It emphasized that the worker’s loss of earnings was due to the compensable injury, not the termination itself. “We find that appropriate modified work was not available and even if it was suitable we find it would not have been sustainable.”
Furthermore, the Tribunal considered the worker’s cooperation with health care measures. He attended all medical appointments, followed treatment plans, and underwent surgery as recommended. Under WSIA policies, a worker is entitled to full LOE benefits if the injury prevents a return to work and the worker is cooperating in health care measures.
LOE benefits
The Tribunal referred to Operational Policy Manual Document No. 18-03-02, which states, “If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB.”
In addressing the employer’s allegations leading to termination, the Tribunal found them insufficient to deny LOE benefits. “The evidence is mixed that modified work would have been available to the worker but for the termination,” the decision stated. It also noted that the worker’s termination occurred shortly after expressing concerns about his worsening condition to his physician.
The Tribunal allowed the worker’s appeal, stating, “The worker is entitled to full LOE under section 43 from December 7, 2018, to October 3, 2019.”
For more information, see Decision No. 763/24, 2024 ONWSIAT 1459 (CanLII).
