The Case for Ongoing Loss of Earnings After Termination: A Summary of WSIAT Decision No. 233/20

  • June 26, 2020
  • Jennifer Chan

What happens when a worker has been dismissed for cause after they return to work following a compensable workplace accident? Well, it turns out that the worker could still be entitled to ongoing loss of earnings through the workers’ compensation system.

In WSIAT Decision No. 233/20, 2020 ONWSIAT 474, the Panel heard the appeal of two Appeals Resolution Officer decisions: one that denied entitlement to benefits for carpal tunnel syndrome (CTS), and another that determined the employer did not breach its re-employment obligations when it terminated the worker approximately nine months after he returned to work following a workplace accident. This article focuses on the Panel’s contemplation of the latter.

The Workplace Safety and Insurance Act (“WSIA”) states that employers are obligated to re-employ an injured worker who, as of the date of the injury, has been continuously employed for at least one year. However, if a termination occurs more than six months following the worker’s return to work, the employer is not presumed to have breached its re-employment obligation. In other words, injured workers have six months of job protection upon returning to work following a workplace accident, so long as they have been employed there for at least one year prior.

Aside from that, the WSIA is clear that workers who experience a compensable injury and suffer a loss of earnings are entitled to payments. These payments will end when, among other things, the worker ceases to have a loss of earnings or is no longer impaired as a result of the injury. Although it is not explicitly mentioned in the WSIA, in certain circumstances, payments may also end if the worker is no longer employed by the accident employer.

This brings us to Decision No. 233/20. Although the worker had been employed with the employer for over a year prior to the date of accident, his employer had technically satisfied its re-employment obligations and, in addition, terminated the worker’s employment for reasons unrelated to the worker’s compensable injury. Was the WSIB correct in denying the worker further payments beyond his last date of work?