What the panel treated as outcome-determinative, and which side it favoured.
Employer received phone call from insurance company prior to termination informing of injury claim
Favours Applicant prevailed
This established employer knowledge of injury before termination, defeating the post-termination defense.
From the decision · page 4Applicant continued to work for the employer until he was terminated on July
26, 2018. On that date, the employer had received a phone call from the
insurance company for the driver of the vehicle which had struck applicant. In
that phone call, the insurance company informed the employer that applicant had
made a claim of injury resulting from the accident. The employer testified that
when he asked applicant whether he was making claim of injury, the applicant
denied it. At that point the employer terminated applicant. (Minutes of Hearing,
Summary of Evidence, page 10, lines 20 to 24, and page 12, lines 13 to 19.)
Applicant's inconsistent testimony on personal facts
Favours Defendant prevailed
Found unreliable but not material to the injury claim, so findings were based on other evidence.
From the decision · page 6It is true that on several occasions defendant showed that applicant was not
forthright. For example, in deposition he stated he was married, when in fact he
is not. He stated that he had slept in his truck for only a couple of months, when
in fact it had been several months. He stated that he had done dispatching work
beginning in December 2019 when in fact he had done that beginning on July
2019.
No evidence of employment during temporary disability period
Favours Applicant prevailed
Defendant failed to prove applicant worked during the period of temporary disability, supporting the finding of temporary disability.
From the decision · page 6Defendant further questions applicant's testimony that he had not worked during
the period of time Dr. Abelow found that he was temporarily disabled. However,
defendant provided no evidence of employment in this period. It is defendant's
burden to show that there was employment negating a finding of temporary
disability. The inconsistent statement regarding employment which was elicited
showed that he was working in July 2019 (4 months after the end of the TD
period) rather than December 2019. This inconsistent statement is not sufficient
to impute that he was working in the interval of July 2018 through March 2019.