Employer v. Worker, 2025 CanLII 111671

20250060

REPRESENTED by:

HEARD by:

DATED:

Stephanie Godin, appeals resolution officer

AUGUST 8, 2025

ISSUE

The September 26, 2024 decision by the case manager that allowed loss of earnings benefits from May 6, 2024 until September 30, 2024 stemming from a temporary work disruption.

BACKGROUND

This case was approved for bilateral knee injuries resulting from the worker’s regular duties at work as a “Right side Floor Duct Installer”. The accident date was established as June 12, 2023.

Effective May 6, 2024, the worker was laid off with all other employees due to a plant re-tooling expected to last approximately two years.

At the time of the temporary work disruption, the worker was fit for and performing suitable work at no wage loss.

In a decision dated September 26, 2024, the case manager allowed loss of earnings benefits from May 6, 2024 until September 30, 2024 stemming from the temporary work disruption.

The employer is now objecting to the case manager’s September 26, 2024 decision.

AUTHORITY

Operational Policy Manual

Published

15-06-02 Entitlement Following Temporary Work Disruptions

January 23, 2023

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Employer’s Position

On their Appeal Readiness Form (ARF) dated February 25, 2025, the employer confirmed the issue under appeal as already outlined above. They also indicated their position was already outlined in their written submission dated October 4, 2024. Their reason for objecting is that they do not agree this worker was any different than any other staff members that were laid off on May 6, 2024 during the temporary work disruption with the employer. As a resolution, they are seeking that the full loss of earnings benefits paid to the worker from May 6, 2024 to September 30, 2024 (up to but not including) be revoked. Should the appeal be allowed, all information is already on file for implementation.

Worker Representative’s Position

The worker representative submits the September 26, 2024 decision by the case manager that allowed loss of earnings benefits from May 6, 2024 until September 30, 2024 stemming from a temporary work disruption should be upheld.

Assessment

WSIB Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions, states:

The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a temporary work disruption.

Workers are entitled to additional LOE benefits when evidence indicates:

the worker would seek new employment in the general labour market to attempt to restore their loss of earnings during the temporary work disruption (i.e., if they were not injured), and
the work-related injury/disease impacts the worker’s ability to earn income through new employment.

Temporary work disruptions are generally expected to last less than 3 months and include:

layoffs resulting from temporary changes in the availability of work due to economic factors (e.g., plant retooling, holiday shutdown)
partial reduction in hours or wages due to business circumstances that affects all employees in company, plant, department, or shift (i.e., all employees continue to work)
strikes or lockouts, and
seasonal layoffs (regardless of the length of the off-season).

Layoffs with specific or expected recall dates beyond three months continue to be treated as temporary work disruptions if there is a strong degree of certainty that the recall will occur (e.g., written notice of recall date, employer’s past practices, relationship between employer and employees, unique circumstances).

This policy applies to workers who are partially impaired and fit for suitable and available work at, or subsequent to the start of the temporary work disruption.

In their written submission dated October 4, 2024, the employer argued the following:

The employer is objecting to the allowance of loss of earnings benefits during this temporary work disruption as there is no objective medical documentation to support that (the worker’s) work-related injury would impact his ability to earn income through new employment. In the decision letter dated September 26, 2024, it lists (the worker’s) previous work history dating back to 2003 to support that he would be looking for new employment during the temporary work disruption. The employer argues that this is irrelevant as there are multiple factors outside of the worker’s work-related injury that would affect his ability to search for alternative employment, such as age.

(The employer) has had several layoffs in the past 4 years, although significantly shorter

in duration, (the worker) has not shown evidence of seeking alternate employment.

Noting that (the worker) has not experienced a lengthy layoff in the past (with the employer), WSIB should be directed to consider what other employees who are affected by the layoff have done. In this case the evidence shows that a significant majority of employees have applied for and are in receipt of EI and SUB. (The worker) is not disadvantaged when compared to his peers as he is able to apply for EI benefits and receive EI in addition to SUB and IMP benefits from (the employer).

The employer acknowledges that (the worker) has limitations, however for 7 months prior to layoff

he has demonstrated that he was able to perform his own job (doubled up) at no wage loss. The

employer finds that his current limitations directly resulting from the workplace injury on June 8, 2023, does not prevent him from seeking employment in the general labour market.

Noting that (the worker) is not totally disabled and there is work available within his restrictions,

the employer finds that loss of earnings should not be allowed from May 6, 2024, ongoing as (the worker) would be eligible for EI along with the rest of his co-workers.

Analysis

I have carefully reviewed the claim file information and note that effective May 6, 2024, the worker’s loss of income during the temporary work disruption is due to an employment situation as well as due to their work-related injury.

The WSIB generally maintains the loss of earnings a worker was receiving at the start of a temporary work disruption.

As of May 6, 2024, I note the worker was fit for suitable work and not in receipt of loss of earnings benefits at the time of the temporary work disruption.

At the time of the temporary work disruption, the worker was fit for and performing suitable work at no wage loss.

The worker’s medical restrictions at the time of the temporary work disruption were:

Walk 100 meters, stand 15-30 minutes, full sitting, lifting 5kg, 1-3 steps on ladder, can drive.
Following the temporary work disruption, the worker underwent a compensable right knee surgery on May 14, 2024.

As the worker was not in receipt of loss of earnings at the time of the temporary work disruption, I am unable to maintain the payment of loss of earnings benefits during the temporary work disruption, solely on this basis.

Nevertheless, the temporary work disruption policy then also goes on to say that additional benefits can be paid if there is evidence that:

The worker would seek new employment in the general labour market during a temporary to attempt to restore his/her loss of earnings during a temporary work disruption, and
The work-related injury/disease impacts the worker’s ability to earn income through new employment.

The case manager had conversations with the worker on September 5, 2024 and September 18, 2024. The worker provided a detailed description of their past work history as follows:

Full-time employment with Employer A from 2003 to 2008 when they were temporarily laid off. The layoff became permanent in 2009. Following the temporary and eventual permanent layoff, the worker sought and secured work through several temporary agencies.
2011 – the worker secured permanent, full-time employment with Employer B in Province A. In 2014 this company experienced a shortage of work (temporary work disruption) and the worker’s hours were significantly decreased. Due to the reduction in hours, the worker then sought and secured new employment and quit this job in September 2014.
One week later in September, 2014, the worker began new work in Province B with Employer C. They were laid off in November 2015 due to a shortage of work (temporary work disruption). They then looked for work for one month in Province B, were unsuccessful and then moved back to Province A in search of work.
Early 2016, the worker secured work at Employer D, full time. While working this job, the worker began working with this employer part time. They also worked a landscaping position part time on weekends.
In 2018, they then secured full-time employment with the employer.

I have reviewed the worker’s past work history, and it has revealed that the worker has experienced temporary work disruptions in the past. The worker’s work history does confirm that the worker has been actively employed since 2003 and sought new employment when out of work. Now although the employer has argued that the prior temporary work disruptions with the employer have not been for as long of a period of time as this currently layoff in question, I find that given the extended length of the lay off, it would actually be even more reasonable for a worker now facing an even longer layoff than usual to seek alternate work throughout the extended layoff period.

I am therefore satisfied that the worker would normally seek new employment during the current work disruption if they were not injured. This meets the first criterion for a worker to be entitled to further loss of earnings benefits as per Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions.

Given the worker’s significant medical restrictions at the time of the temporary work disruption, where they then also underwent knee surgery eight days later, I confirm the worker’s injury has impacted their ability to earn income through new employment. This also meets the second criterion for a worker to be entitled to further loss of earnings benefits as per Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions.

As such, I confirm the payment of additional benefits during the temporary work disruption effective May 6, 2024, was and remains appropriate.

For these reasons, the employer’s objection is denied.

CONCLUSION

I conclude the following:

The employer’s objection to the September 26, 2024, decision that allowed loss of earnings benefits from

May 6, 2024, until September 30, 2024 stemming from a temporary work disruption, is denied.

The objection is denied.

DATED August 8, 2025

Stephanie Godin

Appeals Resolution Officer

Appeals Services Division