WSIAT Decision No. 900/21 dated August 2, 2023
This Tribunal decision granted an Employer’s appeal of a 2018 ARO decision which allowed ongoing Loss of Earnings (LOE) benefits and Work Transition Services (WTS) after a worker was terminated pursuant to specific provisions of the collective agreement regarding absence notification.
Following an accepted workplace injury, in the Fall of 2016, this unionized worker commenced a graduated Return to Work plan with the goal of resuming full pre-accident hours and duties within 4 weeks. In the 2nd week of the RTW plan, the worker was asked to move workstations by the lead hand but the worker refused. He left the employer’s premises and went home. He was a no call/no show for the remainder of the week. The following week, the employer issued a letter to the worker advising that he was considered to have abandoned his employment considering his lack of attendance, contact or documentation to substantiate his absences. The worker filed a grievance with respect to his termination. A signed Minutes of Settlement agreed on 9 days pay to the worker in lieu of reinstatement. LOE benefits post-termination were initially denied by the WSIB, however, an ARO decision subsequently allowed LOE benefits for approximately six (6) months from the date of termination. WSIB Operations granted ongoing LOE benefits and other entitlements including Work Transition services. The employer appealed these decisions which were ultimately addressed in this WSIAT decision.
The Panel allowed the employer’s appeal of the first ARO decision and overturned the post-termination benefits and services. The Panel found that “the preponderance of evidence supports, on a balance of probabilities, that the worker’s loss of earnings after October 6, 2016, was not the result of his injury, but rather the result of his termination and settlement agreement.” [76].
In coming to its decision, the Panel relied heavily on the undisputed evidence that the employer had provided suitable modified work at no wage loss at various times, and for extended periods of time. They, therefore, accepted that if not but for the worker’s decision to vacate his position and violate the ‘call-in’ provisions of collective agreement, ongoing suitable modified duties at no wage loss would have continued to be available [77].
The Panel found that the termination, under these circumstances, constitutes “…an intervening event that severed the chain of causation between his injury and subsequent loss of earnings.” [81]
Notably, the additional entitlement flowing from the ARO’s decision far outweighed the entitlement granted up to the termination date because the injury was relatively minor and because the worker was being accommodated for his new restrictions in a position which he had been doing for years as an accommodation for separate injuries. The developments and other decisions flowing from WTS, up to and including the final LOE review (lock-in) resulted in several other objections by both the worker and employer, and another ARO proceeding – the 2021 decision from which eventually joined the initial WSIAT appeal file.
The employer was eligible for retroactive reversal of the LOE benefits and WTS costs which resulted in a manual adjustment of its final NEER experience rating statement for its 2016 accident year as well as adjustment of their premium rates under the new (2020+) Rate Framework model. The worker was not required to repay any benefits received (WSIB Policy # 18-01-04, Recovery of Benefit-Related Debts).
The importance of this decision cannot be understated, especially in light of a long list of Tribunal decisions that found otherwise, i.e. granted ongoing entitlement on the basis that the termination translated to a lack of suitable work being made available to the worker with compensable restrictions. This case was successful because the employer was able to bring good evidence about their commitment to, and provision of both temporary and permanent modified work, at no wage loss as well as a provision of the collective agreement that was being consistently applied and supported by the union.
