This is an interesting case, and , in my humble opinion, poorly argued by the employer. If the employer would have sought immigration advise, he would have been told that employing a worker without legal status is an offence under the Immigration and Refugee Production Act. Surely, he could not be forced to employ someone who is not entitled to work in Canada. Further, the WSIB does not seem to know that even though the worker, a rejected refugee claimant, has "applied" to get "status" in Canada, such status is unlikely to be granted in many circumstances, and at this point, is only a mere possibility that it would be granted.
DECISION NO. 1648/05
The reasons for decision were rendered by B. Wheeler, Member and A. Grande, Member. Separate dissenting reasons were rendered by B. Kalvin, Vice-Chair.
REASONS
(i) The Appeal Proceedings
1 The worker appeals the decision of the Workplace Safety and Insurance Board (the "Board") rendered by Appeals Resolution Officer, M. De Marco, on February 26, 2004. That decision concluded that the worker is not entitled to compensation for loss of earnings for a workplace accident beyond September 1, 2003. The Appeals Resolution Officer also decided that the worker is not entitled to labour market re-entry services.
2 This appeal began in Toronto on September 13, 2005 and reconvened on September 25, 2008. The worker appeared and was represented by R.A. Fink, a lawyer. The employer was notified but chose not to attend.
(ii) The Issues
3 The issues before the Panel are entitlement to loss of earnings (LOE) benefits subsequent to September 1, 2003 and entitlement to labour market re-entry (LMR) services
(iii) Background
4 On July 30, 2002, while disembarking an industrial lawnmower, the worker, a labourer for a landscape, industrial maintenance and snow removal company, sustained significant injuries to his left foot. The worker's left foot was caught under the lawnmower causing severe open fractures and dislocation of the foot. The worker underwent surgery. The operative report notes irrigation and debridement of the wounds with open reduction and percutaneous pinning of 1st, 2nd, 3rd and 4th metatarsal fractures and metatarsophalangeal dislocations. The worker's left foot was placed in a cast postoperatively.
5 The report from the surgeon, Dr. Terry S. Axelrod, dated November 11, 2002, notes the worker then commenced a physiotherapy program. The Physiotherapist's Treatment Extension Request dated February 21, 2003 notes the end date of physiotherapy as March 6, 2003.
6 The worker was also referred for orthotics. The report dated January 17, 2003 from Kathryn Callfas, Certified Pedorthist, Sunnybrook Centre notes:
[The worker] was evaluated today for his footwear and orthotic needs based on a referral from his orthopaedic surgeon, Dr. Terry Axelrod.
[The worker] had a crush/incomplete amputation injury to the left forefoot. He now has a rigid forefoot due to multiple factures of the metatarsals. He is unable to toe-off due to restricted extension of the metatarsophalangeal joints causing excessive pressure at the MTJt's. The first toe is particularly painful for him to weight bear on, the second toe to a lesser degree. He also has a soft tissue thickening on the dorsum of the foot in particular the midtarsal and proximal metatarsal region.
I have recommended a UCBL style orthosis, he will require a pair to be worn in his everyday shoes, and a pair in safety boots. He will also require an external shank for his runners. At this time we are going to try to accommodate him in off the shelf safety boots. In the event that they don't work he will require custom made safety boots ...
7 The Board's Unit Medical Advisor notes in Memorandum No. 29A, dated February 4, 2003, that the worker has permanent precautions of no prolonged walking, no walking over rough ground, no heavy weight bearing, no ladder climbing and use of stair at own pace. On June 26, 2003 the worker was rated for a Non-Economic Loss award and granted 10%.
8 In a letter dated December 19, 2002, the accident employer, whose business is landscaping, industrial maintenance and snow removal, made the worker an offer of modified work as of December 23, 2002. No specific position was identified nor was any description of the job offer provided. The same letter stated: "It is also the expectation that you will provide a social insurance number or proof that you have applied four weeks after your return to work. If this information is not given you are forewarned that it is grounds for termination".
9 Despite the offer of modified employment, the worker did not return to work, as he felt he could not perform it until he was fitted with custom orthotics in February, 2003. He then contacted the employer about the offer of modified work.
10 In a letter dated July 2, 2003, the worker's representative, R. A. Fink, advised the Board that the worker was being required by the employer to get a SIN. The worker's representative further advised the Board that the "worker did not have legal status in Canada and currently has engaged a lawyer to obtain such." The worker returned to work with the accident employer on September 1, 2003.
11 The worker's LOE benefits were initially reduced by the Claim Adjudicator based on the employer's offer. The ARO later reinstated full LOE from December 23, 2002 to September 1, 2003, the date the worker returned to work with the employer. The ARO decision dated February 26, 2004 notes "the worker confirmed receiving the employer's letter dated December 19, 2002 in which an offer of employment was made. However, he indicated his condition did not permit a return to work in view of the discomfort and limited walking tolerance. He testified that it was not until February 2003 that he was prescribed/fitted with custom orthotics and felt capable of returning to work. He subsequently contacted the employer, however, was advised no modified duties were available. The worker stated the employer's activities during the winter involved snow removal and in this respect doubts whether modified employment was actually available in December 2002." The ARO found that "the job offer is not viewed as being in good faith." The ARO concluded that "in the judgement of the appeals resolution officer, the worker is entitled to full LOE benefits from December 23, 2002 to September 1, 2003, the date he returned with the accident employer. The worker attempted to contact the employer on several occasions prior to September 2003 to arrange a return to work however he was informed work was not available."
12 The worker returned to work with the accident employer on September 1, 2003 and was terminated at the end of October 2003.
13 The ARO notes the worker returned to work with the employer in September 2003. The ARO concluded that, "subsequently [the worker] demonstrated the ability to perform his regular work activities, with the injury not viewed as limiting or impacting on his ability to restore his pre-accident earnings. The lack of a SIN lead to his termination. LMR services are not warranted as the worker demonstrated the ability to perform his pre-accident duties. Furthermore, the worker's current legal status in Canada does not allow him to attend any educational institution or partake in any academic professional or vocational training course." The worker appeals this decision.
(iv) Worker's Testimony
14 The worker provided testimony regarding his work history, the accident, the nature of his injury, work history with the accident employer, his return to work in September 2003, the termination in October 2003 and job search efforts thereafter.
15 The worker testified that he came to Canada as a visitor in March 2000. He began working two weeks later in a factory. He did not have legal status to work and had no document.
16 He testified he commenced work with the accident employer about a year and a half prior to his injury. He was employed as a labourer, doing landscaping, industrial maintenance and snow removal earning $10.00 per hour. The worker testified the employer was aware he did not have legal status to work at the time of hire. The accident employer did not ask for any documents or a SIN when first hired or at any other time during that year and a half of employment prior to the injury of July 30, 2002.
17 The worker testified that in December 2002, when the employer made the offer of modified work, he was unable to do any work due to his compensable accident. In February 2003, after he was fitted with the necessary orthotics he began contacting the employer, however he was advised no modified duties were available. At that time the employer's activities involved snow removal.
18 In September 2003 the worker returned to work with the accident employer doing landscaping. The worker testified he had a lot of difficulty as he was required to do a great deal of standing and walking on uneven ground and this would cause him much left foot pain. He also testified wearing safety boots was a problem as his foot would hurt when he would bend his foot to walk. His foot would swell up and it would be difficult to wear the required safety boots. He testified he has difficulty weight bearing. He testified he never again went back on a lawnmower. He stated he did what he could but was restricted from doing the job as he had done previously. He testified that he did not feel this work was suitable for him but he was forced to do it as he needed the money.
19 He testified that it was only after the accident that the employer began asking for a SIN. He found this strange as the employer knew he did not have a SIN or legal status to work, but he assured the employer that he had a lawyer and was in the process of getting legal status. The worker testified that that at the end of October 2003, as per the employer's request, he provided the employer with papers that showed he had made application and was in the process of getting legal status. The employer terminated him at the end of October 2003 regardless of this proof.
20 The worker testified that he did not believe the reason he was terminated was the lack of a SIN number and legal status, as he had provided the employer with proof of application as requested. He further stated that he was never provided a letter from the employer explaining the reasons for termination.
21 The worker testified that as a result of his application, he was granted refugee status on November 3, 2003 and a work permit in January 2004. Documents confirming such were provided to the Panel at the hearing.
22 The worker testified that after he was terminated in October 2003 he immediately began searching for work. After a few months of searching, with the help of a friend he located a job as a butcher. He claims to have suffered a wage loss as he was earning $7.50 an hour to start and about a year later he was paid $8.00 per hour. He stated there was a lot of standing in this position and after an hour of standing he would begin experiencing pain and swelling. He does not feel this job was appropriate for his disability either but he had to do it because he was desperate for money. While at this job he continued to suffer a wage loss.
23 In January 2006 the worker was deported. He recalls not working at that time. He stated he was uncertain how long he had been out of work prior to being deported. He believes it may have been a few months.
24 The worker was away from Canada from January 2006 to September 22, 2007. While back home he did work about 8 months as a cook. He found this difficult as well but again felt he had no choice. He had only worked in construction in his home land previously but could no longer work in this field with his left foot injury.
25 The worker also testified that he returned to Canada on September 22, 2007 as a landed immigrant. In April 2008 he returned to working in landscaping but just raking leaves. He was required to do a lot of walking which caused him much left foot pain. He worked for a couple of other landscaping companies but testified he found the work unsuited to his disability. He stated he experienced the same difficulties he had experienced when he returned to work with the accident employer. He testified he did not know what else he could do. He knew that this kind of work was not appropriate for his condition but he does not have the education, skills or experience to do anything else.
26 He testified he needs retraining to locate a job suitable for his condition.
(v) Medical Evidence
27 The worker under went surgery for the traumatic injury to his left foot on July 30, 2002. The report from his treating surgeon, Dr. Axelrod, referenced earlier, notes irrigation and debridement of the wounds with open reduction and percutaneous pinning of 1st, 2nd, 3rd and 4the metatarsophalangeal dislocations. The worker's foot was placed in a cast post-operatively.
28 Dr. Axelrod reports on November 11, 2002 that the worker has difficultly putting pressure on his foot, a very stiff great toe and difficulty with mobilization. "There is a lot of stiffness of the second toe in extension. There is a fair amount of scar tissue. Overall, he is doing moderately well." Dr. Axelrod started the worker on a physiotherapy programme and also referred him to Dr. David Stephen, "our foot and ankle specialist, for an opinion on whether or not anything more can be done for this man." A December 17, 2002, report from the Fracture Clinic records the referral to Dr. Stephen. It indicates that while the wound seemed to be nicely healed, "the toes are very stiff, especially the first MTP with very minimal range of motion which is painful." Shoe inserts and stiff soled shoes are recommended, and if this does not work, the worker may require fusion of the first MTP joint. The report indicates that the worker is to return to the Clinic in three months and "we will take things from there." There are no further reports of any visits to the Fracture Clinic.
29 A January 17, 2003 Progress Note from the Sunnybrook Centre for Independent Living indicates the worker "now had a rigid forefoot due to multiple fractures of the metatarsals. He is unable to toe-off due to restricted extension of the metatarsophalangeal joints causing excessive pressure at the MT Jts. The first toe is particularly painful for him to weight bear on, the second to a lesser degree. He also has a soft tissue thickening on the dorsum of the foot in particular the midtarsal and proximal metatarsal region." The clinical coordinator/certified pedorthist recommended a UCBL orthosis for his shoes and safety boots and an external shank for his runners. A modified safety boot and orthosis were supplied March 5, 2003. A physiotherapist's treatment extension request dated February 21, 2003 describes the results of the treatment to date as "swelling decreasing, ROM increasing, strength continues to slowly increase." It notes pain with prolonged weight-bearing and walking and recommends continuing physiotherapy for an estimated four weeks; however, it does not appear that the worker received any further physiotherapy.
30 The Board's Unit Medical Adviser notes in Memorandum No. 29A, dated February 4, 2003, that the worker has permanent precautions of no prolonged walking, no walking over rough ground, no heavy weight bearing, no ladder climbing and use of stair at own pace. On June 26, 2003 the worker was rated for a Non Economic Loss award and granted 10%.
31 There is a gap in the medical evidence.
32 In a report dated November 22, 2007, Dr. H. E. Rosenfeld, Doctor of Podiatric Medicine, confirms that the worker continues to experience significant difficulties with his foot.
Conclusion & Recommendations:
[The Worker] had a catastrophic injury to the left forefoot that left him with a rigid, painful and numb appendage. It is remarkable that the orthopaedic surgeon did not amputate his forefoot considering the damage done. It was obvious from his gait that bending the forefoot is quite uncomfortable for him and that any type of force needed to bend the foot increases his discomfort. With that in mind, here are my recommendations for him regarding future treatment and work related activities.
Treatment:
First, I would start by getting him into a soft orthotic, not the rigid UCBL type proposed by the pedorthist. Next, his footwear would be large enough to accommodate the tissue expanse of the dorsal forefoot, maybe even a custom make safety boot or shoe. It would have steel toes and steel shank so that bending the foot would not be an option. I would also like to see external modifications done to the footwear on the outside of the MPJ area. That would include an aggressive rocker bottom sole, so that he could roll over the affected forefoot instead of having to bend it. As well, cushioning and padding the entire inside of the shoe would help. Another idea would be to wear an Aircast devise. It is a removable cast that can divert direct pressure from the plantar foot itself. This might give him the mobility he needs to complete a full work day. At some point in the future, if the hardware that is in place in the 1st ray could be removed, he might ambulate better.
Tolerances:
Working with an injury to a left foot like [the worker's] is a tenuous situation at best. It is hard to ascertain exactly when the foot will become painful and rest is needed. Even standing in front of a counter will eventually become intolerable should he do it long enough. It is with that thought in mind that I would recommend that any job he gets he is able to take rest as needed and then return to the task at hand. Firstly, I would say that a standing job is probably the best job for him. He could probable go for a 1 hour to 1.5 hours before he needs to break. The task that requires more exertion and bending of the forefoot, i.e. pushing objects, pulling objects, would involve less time, maybe .5 to 1 hour before he must sit. Because the foot is rigid and cannot accept loads or adjust to uneven terrain well, carrying heavy objects even with help will also reduce the time using the foot. Manual snow removal requires pushing, pulling, bending and lifting, which would make the foot painful in a shorter period of time. Of course, if he drives a machine then his time at work is limitless as weight bearing is not an issue. As far as limits are concerned, he could potentially work an 8 hour/day shift as long as he had the opportunity to rest as needed. The only jobs that I would have him avoid would be ones where his employers insist on continuous standing, walking or bending. In short, [the worker] still has the capability of working but not in a multiple hour situation with rest. He could not tolerate it.
(vi) Relevant Law and Policy
33 On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ("WSIA") took effect and applies to this case.
34 The relevant section of the current Act relating to LOE benefits states as follows:
s. 43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,
(a)
the day on which the worker's loss of earnings ceases;
(b)
the day on which the worker reaches 65 years of age if the worker was less than 63 years of age on the date of the injury;
(c)
two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;
(d)
the day on which the worker is no longer impaired as a result of the injury.
(2)
Subject to subsections (3) and (4), the amount of payments is 85 per cent of the difference between,
(a)
the worker's net average earnings before the injury; and
(b)
the net average earnings that he or she earns or is able to earn in suitable employment or business after the injury.
...
(3)
The amount of the payment is 85 per cent of his or her pre-injury net average earnings less any earnings the worker earns after the injury if the worker is cooperating in health care measures and,
(a)
his or her early and safe return to work; or
(b)
all aspects of a labour market re-entry assessment or plan.
35 Provisions governing labour market re-entry and labour market re-entry assessment are set out in section 42 of the WSIA:
42.(1) The Board shall provide a worker with a labour market re-entry assessment if any of the following circumstances exist:
1.
If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury.
2.
If the worker's employer has been unable to arrange work for the worker that is consistent with the worker's functional abilities and that restores the worker's pre-injury earnings.
3.
If the worker's employer is not co-operating in the early and safe return to work of the worker.
36 Board Operational Policy Manual Document No. 19-03-02, LMR Assessments, states:
Guidelines
The WSIB provides a worker with an LMR assessment if it is unlikely the worker will be re-employed by the accident employer due to the nature of the injury
The employer has been unable to arrange suitable and available work for the worker that restores the pre-injury earnings, or the employer is not co-operating in the early and safe return to work (ESRTW) process.
Following ESRTW
The WSIB also provides LMR assessments for workers who successfully returned to suitable employment through ESRTW if the work-related injury resulted in a permanent disability/impairment, and
The worker suffers a deterioration of the work-related injury, or
The worker is permanently laid off from that job and has not received LMR services previously.
...
Entitlement to LMR plan
Using the information gathered, the decision-maker identifies potential SEB options and determines entitlement to an LMR plan. The SEB options may include a return to suitable employment with the accident employer (see 19-03-04, Entitlement to LMR Plans). In determining entitlement to LMR plans the WSIB must have regard for workers' rights under the Ontario Human Rights Code. Workers are entitled to equal treatment, without discrimination, with respect to services, goods, and facilities. Therefore, when conducting an LMR assessment, the WSIB considers any non-work-related disability, handicap, or condition a worker may have.
(vii)
Majority's Conclusion
37 The worker seeks LOE benefits subsequent to September 1, 2003, as well as LMR services. The worker does not seek benefits for the period January 2006 to September 22, 2007 while out of the country.
38 Section 43(1) of the WSIA provides for a worker to receive LOE benefits when he or she has a loss of earning as a result of a work-related injury. The WSIB provides the worker with LMR services if the early and safe return to work activities do not result in a return to work that is suitable, available and restores the worker's pre-injury earnings.
39 While the Board granted the worker LOE benefits up to September 1, 2003 and a NEL, the Board denied subsequent LOE benefits and LMR services on the basis that the worker was able to perform his regular pre-accident work and further that the worker's loss of earning was not due to the compensable injury but rather his termination for not having legal work status.
40 The Majority concludes that the worker is entitled to LOE benefits subsequent to September 1, 2003 and to LMR services for the following reasons.
41 The Majority notes the evidence regarding the worker's permanent restrictions and the requirements of the pre-injury job. In particular, the Majority notes the medical opinion of Dr. Rosenfeld, Doctor of Podiatric Medicine, who, in a report dated November 22, 2007 confirms that the worker's ability to work is still seriously compromised,
Working with an injury to a left foot like [the worker's] is a tenuous situation at best. It is hard to ascertain exactly when the foot will become painful and rest is needed.
and that,
The task that requires more exertion and bending of the forefoot, i.e. pushing objects, pulling objects, would involve less time, maybe .5 to 1 hour before he must sit. Because the foot is rigid and cannot accept loads or adjust to uneven terrain well, carrying heavy objects even with help will also reduce the time using the foot. Manual snow removal requires pushing, pulling, bending and lifting, which would make the foot painful
42 The Majority of the Panel notes the worker's testimony that when he returned to work with the accident employer the job was not suitable as it required prolonged standing and walking on uneven ground while wearing safety boots. The prolonged walking would require continuous bending of the forefoot causing much discomfort to the left foot. The prolonged standing and weight bearing put a lot of pressure on the foot. The Majority further notes the worker was not operating the lawnmower any longer, which is an essential duty of the pre-accident job. Furthermore the worker would be precluded from engaging in snow removal activities.
43 The Majority further notes there is no evidence from the employer regarding available suitable work. In December 2002 the employer advised the Board that it did have suitable modified work but did not identify any specific job or provide any description of the modified work. The Majority further notes that the job offer was made at the end of the season when the worker would typically be involved in snow removal. During the period from February 2003 to September 2003 the employer advised the worker there was no suitable work available. The employer did not provide any information regarding the work provided to the worker in September and October 2003. The employer was advised of the Tribunal hearing but chose not to participate and therefore did not provide any information or clarification regarding the nature of the work available to the worker.
44 Therefore based on the evidence available to the Panel, the Majority finds that the worker was effectively required to perform the pre-injury job. This job was not suitable as it exceeded the worker's permanent restrictions nor was it sustainable. The employer was unable to arrange work that was consistent with the worker's functional abilities.
45 Given the nature and severity of the worker's foot condition, the absence of the medical follow-up anticipated by his treating health care providers at Sunnybrook, his limited transferable skills, his employer's inability to provide suitable work and the fact he had only performed manual labour, the Majority is satisfied that the worker was competitively unemployable. While he attempted, to the best of his ability, to return to work with the employer, he was not able to perform the job duties the way he had previously. We are satisfied the work he was performing prior to his termination was not suitable and not sustainable. Accordingly, he is entitled to full LOE benefits under Section 43(1) from the date of termination. It is unclear from the evidence to what extent he suffered a wage loss while working for the accident employer in September and October, 2003. He is also entitled to LOE benefits for any wage loss suffered during this period.
46 Given the worker's evidence that he continually looked for work following his termination, the Majority is satisfied the worker is entitled to full LOE benefits until he succeeded in finding employment with the butcher shop. It appears that he continued to suffer a wage loss after finding this job. His on-going entitlement to LOE benefits after he commenced working for the butcher shop is referred back to the Board.
47 While the finding that the worker is competitively unemployable at the time he was terminated is sufficient to dispose of the appeal, submissions were made on circumstances surrounding the worker's termination of employment in October, 2003. In the Majority's view, it is questionable whether the employer had just cause to terminate the worker on the grounds set out in the job offer. The job offer stated that there were grounds for termination if the worker did not provide "a Social Insurance Number or proof you applied." [emphasis added] The evidence indicates the worker did provide the employer with information that he had retained a lawyer, had made application and was in the process of obtaining legal status to work. The fact that the worker was granted refugee status on November 3, 2003 and a work permit in January 2004 further support his evidence that he had taken steps to get legal status to work, as required by the employer.
48 The Majority also notes the Tribunal decisions referenced by Tribunal Counsel who attended the second day of hearing which indicate that termination should be for reasons unrelated to the worker's compensable condition.
49 The worker in Decision No. 260/05 suffered a leg injury and returned to modified work but his employment was terminated one month after that. In this case, the Vice-Chair was not satisfied that the worker was dismissed solely due to his own misconduct. In reaching this conclusion, the Vice-Chair found that the return to work process was "less than ideal", there was "no clear evidence available to [him] as to the process carried out for the termination," and that the Board "did not fully investigate the reasons for the [worker's] termination. The Vice-Chair concluded that the worker was entitled to further LOE. In Decision No. 528/05, the Panel applied the same reasoning and allowed entitlement to LOE benefits. The Panel in Decision No. 2660/07 also adopted the same reasoning in allowing further LOE benefits. In that decision the Panel was not persuaded that "the reasons for the worker's loss of earnings was solely due to the termination of his employment".
50 Considering that the worker had taken steps to get legal status, as required by his employer, and that when he returned to work he was effectively required to perform his pre-injury job but was unable to do so properly because the job was unsuitable and unsustainable, we cannot conclude that he was let go for reasons unconnected to his compensable disability.
51 Turning to the worker's appeal for LMR services, subsections 42(1) and (2) of the Act that determine if a LMR Assessment and Plans are to be provided read as follows:
42.(1) The Board shall provide a worker with a labour market re-entry assessment if any of the following circumstances exist:
1.
If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury.
2.
If the worker's employer has been unable to arrange work for the worker that is consistent with the worker's functional abilities and that restores the worker's pre-injury earnings.
3.
If the worker's employer is not co-operating in the early and safe return to work of the worker.
52 In this case the Majority has found that the worker's left foot impairment prevents the worker from returning to pre-injury employment and the employer has been unable to arrange work that is consistent with the worker's functional ability and that restores the worker's pre-injury earnings.
53 Accordingly, the Majority finds that the worker is entitled to LMR services to assist him in returning to suitable work and to re-establish his pre-accident earning. While the ARO noted terms in the worker's work permit which might have limited the range of LMR services available, this is no longer an issue as the worker is a landed immigrant.
DISPOSITION
54 The appeal is allowed.
55 The worker is entitled to full LOE benefits from the date of his termination at the end of October, 2003 to the date he found employment as a butcher. He is also entitled to benefits for any wage loss suffered in September and October 2003. Ongoing entitlement to LOE benefits following his employment with the butcher shop is referred back to the Board.
56 The worker does not seek benefits for the period January 2006 to September 22, 2007 while out of the country.
57 The worker is entitled to LMR services.
DISSENT
REASONS
58 I have had the opportunity of having read the reasons for decision of my colleagues, and, with respect, I have come to a different conclusion.
(i) Background
59 The background to this appeal is as follows. The worker is 39 years old. He is originally from Grenada and came to Canada in March 2000 as a visitor. He subsequently made a claim for refugee status which was denied.
60 In June 2000, the worker began working for a landscape labourer. He did not have legal status to work in Canada at that time. On July 30, 2002, the worker was injured at work. While getting off a riding lawnmower he slipped and caught his left foot in the mower blades. He was taken to hospital where he underwent surgery. He was diagnosed with a "Traumatic left foot injury with 1st, 2nd, 3rd, and 4th metatarsophalangeal dislocations and 1st, 2nd, 3rd, and 4th, metatarsal fractures."
61 The worker made a claim to the Workplace Safety and Insurance Board (the "Board") for compensation benefits which the Board allowed. In addition to loss of earnings ("LOE") benefits, the Board granted the worker entitlement to a non-economic loss ("NEL") benefit as compensation for a permanent impairment of his left foot.
62 On December 19, 2002, the accident employer wrote to the worker offering him modified duties at graduated hours. However, the employer's offer was contingent on the worker obtaining legal status to work within four weeks of his return to work. The employer's letter reads, in part, as follows:
This letter confirms that [the employer] is offering you modified work, returning December 23, 2002.
The following schedule was determined, as advised by WSIB.
[The employer] will pay you the same previous wage for hours worked and WSIB will pay the balance.
It is also the expectation that you will provide a Social Insurance Number or proof that you have applied 4 weeks after your return to work. If this information is not given you are forewarned that it is grounds for termination.
63 The worker did not return to work in December 2002. The worker did not feel that he was physically capable of working at that time. The worker remained off work until he returned to work with the accident employer on September 1, 2003. It appears that the worker returned to his regular pre-accident duties and hours at that time. A month later, in October 2003, the worker was fired.
64 After he was fired the worker was out of work for several months before finding work as a butcher.
65 In January 2006, the worker was deported from Canada.
66 On September 22, 2007, the worker returned to Canada as a permanent resident. Shortly after his return he found employment as a landscaper. He continued that employment until a seasonal layoff for the winter. In April 2008, the worker found another job as a landscaper. He has worked as a landscaper since that time, although in the summer of 2008, he switched employers.
67 As noted earlier, after the worker's accident of July 30, 2002, he was granted entitlement to LOE benefits and a NEL benefit. A Board Claims Adjudicator determined that the worker was entitled to LOE benefits up to February 3, 2003. The Claims Adjudicator determined that as of that date the accident employer had suitable modified work available for the worker, and accordingly, the worker was not entitled to LOE benefits beyond February 3, 2003. The Claims Adjudicator also ruled that Labour Market Re-entry ("LMR") services were not warranted.
68 The worker objected to the Claims Adjudicator's decision. The worker's objection was considered at a hearing before an Appeals Resolution Officer ("ARO") in the Board's internal Appeals Branch. In a decision dated February 26, 2004, the ARO allowed the worker's objection in part. The ARO ruled that the worker was entitled to full LOE benefits from the date of his accident until his return to work with the accident employer on September 1, 2003. The ARO ruled as follows. The ARO ruled that after his return to work on September 1, 2003, the worker:
demonstrated the ability to perform his regular work activities, with the injury not viewed as limiting or impacting his ability to restore his pre-accident earnings. The lack of a SIN led to his termination. LMR services are not warranted as the worker demonstrated the ability to perform his pre-accident duties. Furthermore, the worker's current legal status in Canada does not allow him to attend any educational institution or partake in any academic, professional or vocational training course.
69 The worker now appeals the ARO's decision to this Tribunal. The worker claims entitlement to LOE benefits beyond October 2003, that is, the date he was fired by the accident employer. The worker also claims entitlement to an LMR assessment.
(ii) Issues
70 The issues which arise for determination on this appeal are as follows:
1.
Is the worker entitled to LOE benefits beyond October 2003?
2.
Is the worker entitled to an LMR assessment?
(iii) Analysis
Entitlement to LOE benefits beyond October 2003
71 Having considered the evidence and submissions put forward at the hearing of this appeal, and with respect to my colleagues who have come to a different conclusion, I find that the worker is not entitled to LOE benefits beyond October 2003. The basic reason for this finding is that the worker's loss of earnings beyond October 2003 is not attributable to his workplace accident.
72 Because the worker's accident occurred in 2002, his entitlement to benefits is governed by the Workplace Safety and Insurance Act, 1997 (the "WSIA"). Section 43 of the WSIA makes clear that a worker is entitled to LOE benefits only if the loss is "as a result of the injury." It reads as follows:
43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins.
73 In this instant case, I find, on a preponderance of the evidence that the worker's LOE subsequent to October 2003 was not a result of his compensable injury. Rather, the worker's LOE was the result of his being fired by his employer because he was not legally authorized to work in Canada.
74 At the hearing of this appeal, the worker testified that he was unsure why he was fired in October 2003 and that no explanation was given to him. In my view, it is more likely than not that the worker was fired because he failed to provide the accident employer with proof of his legal capacity to work in Canada. As noted earlier, on December 19, 2002, the accident employer wrote to the worker and indicated that they had work available for him, but that he would be expected to provide them with proof, within four weeks, of his ability to work legally in Canada. The worker did not provide that proof to the accident employer and accordingly was fired.
75 Further support for the conclusion that the worker was fired for reasons unrelated to his compensable injury is the fact that the accident employer was not under a legal obligation to reemploy the worker after his injury-related layoff. Section 41 of the WSIA imposes reemployment obligations on an employer to reemploy an injured worker only if that employer employs 20 or more workers. That provision reads as follows:
41(1) The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.
(2) This section does not apply in respect of employers who regularly employ fewer than 20 workers or such classes of employers as may be prescribed.
76 The evidence in this case is that the accident employer was not subject to the reemployment obligation. A memorandum written on July 14, 2003 by the Claims Adjudicator reads, in part, as follows:
Under section 41, employers have a legal responsibility to re-employ a work if the worker has been employed continuously for at least one year, and the employer regularly employs more than 20 workers.
Payroll records for 2002 provided by the employer suggests less than 20 workers were employed by the company prior to the 30JUL2002 work injury ...
77 Thus, the evidence is that the employer was not under a legal obligation to reemploy the worker after his injury-related layoff. The fact that the employer offered to take the worker back on the condition that he was able to obtain legal status to work in Canada, strongly suggests, in my view, that the worker's subsequent firing was a direct result of his failure to obtain such status and was not related to the worker's compensable injury. If the employer did not want to take the worker back because he was injured it could have achieved that result without taking him back conditionally and then firing him for failure to comply with that condition. I conclude on a preponderance of the evidence that the worker was fired because he could not provide the accident employer with proof of his legal status to work in Canada. At the time he was fired the worker was earning his pre-accident wages. Accordingly, the worker's LOE subsequent to October 2003 were not a "result of the injury." Rather, his LOE was a result of having been fired for a reason unrelated to his compensable injury.
78 I am fortified in this conclusion by the conclusions of the Panel in Decision No. 2035/00. In that case a worker who had previously had a compensable workplace accident resulting in a permanent impairment was subsequently fired by her employer for reasons unrelated to her compensable injury. The Panel described the circumstances of that case as follows:
In this appeal, the worker returned to work after a workplace injury performing light work for the accident employer at no wage loss. The worker has been awarded a 20% NEL benefit and a sustainability FEL benefit. She was subsequently terminated by the employer in May 1993. Subsequent to termination, the worker has been unable to restore her pre-accident earnings. The worker is seeking ongoing VR (or in the language of the current legislation, labour market re-entry (LMR)) services, in order to restore her earning capacity. She is also seeking to have her FEL benefit redetermined to reflect the wage loss she has experienced since her termination.
79 The Panel went on to state that should it come to the conclusion that the worker was terminated for just cause, then her subsequent wage loss could not be attributed to her compensable accident and accordingly, she would not be entitled to subsequent income replacement or LMR benefits:
Should this Panel determine that the worker was terminated for just cause, that is, as a result of her personal misconduct in the workplace, it follows that her subsequent wage loss and resulting requirement for LMR assistance resulted from the misconduct and not from her workplace injury. In that case, she would not be entitled to the benefits that she seeks in this appeal. LMR services and a FEL benefit are only available to workers where a wage loss is the result of a workplace injury.
80 The Panel then referred to Decision No. 1230/01 which denied further benefits to a worker who had been terminated for reasons unrelated to his compensable injury:
The Panel in that decision determined that the worker's employment had been terminated for reasons that were unrelated to his compensable injury. The Panel confirmed the worker's sustainability FEL award and determined that the worker was not entitled to further VR services. At paragraph [34], the Panel stated:
... In our view, the worker was suffering a wage loss in April 1995 and the employer no longer had suitable work available for the worker because the worker removed himself from the employer's workplace when he was terminated and accepted the settlement. As noted above, neither the worker's termination nor his acceptance of the settlement had anything to do with the worker's compensable injury.
81 The Panel in Decision No. 2035/00 concluded that a worker who is not experiencing a wage loss and is fired for just cause:
must be deemed to have taken him or herself out of the workplace through his or her own actions and a loss resulting from such actions would not be compensable under the Act in the absence of other relevant circumstances.
82 The Panel did not identify what other "relevant circumstances" might entail. The Panel concluded that the worker in that case was terminated for just cause and was therefore not entitled to further income replacement or LMR services.
83 I agree with the approach set out in Decision No. 2033/00. As noted above, I find that the worker in this case was fired in October 2003 for just cause. Accordingly, his "subsequent wage loss and resulting requirement for LMR assistance" did not result from his compensable injury. He is therefore not entitled to LOE benefits beyond October 2003 or to LMR services.
Entitlement to an LMR assessment
84 For reasons set out above, I find that the worker is not entitled to an LMR assessment.
DISPOSITION
85 The appeal is denied.
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