Highlights of Noteworthy Decisions

Decision 3806 17
18/11/2020
E. Kosmidis
  • Earnings basis (apprentice)
  • Earnings basis (nominal remuneration)
  • Pensions (arrears)
  • Supplements, transitional provisions (permanent) (wage loss)
  • Temporary disability (beyond pension level)

The worker suffered a right knee injury in March 1981. He continued working for the accident employer as a glass cutter and then as a glass mechanic. He was laid off by the accident employer and, after working for several other employers as a glazier, started his own glass installation business around 1989. The worker permanently closed the business around the time of his first knee surgery in 2011. The worker appealed decisions of the Appeals Resolution Officer on a number of issues.

The Board granted the worker a 5% pension for right knee impairment retroactive to 1981, with an increase to 12% in 2012 and to 14% in 2014. The Vice-Chair confirmed the quantum of the pension as determined by the Board but adjusted the arrears date for the increase to 12% from 2012 to 2007.
The worker was not entitled to supplementary benefits under s. 147(4) of the pre-1997 Act from 1992 to 2011, as he did not suffer a wage loss. However, he was entitled to the supplement from 2011, as he was no longer able to carry on his business.
The worker was also entitled to temporary total disability benefits from 2011 to 2014, which represents the period of time for which the worker was below his pension.
At the time of the accident in 1981, the worker was an apprentice engaged in a training program learning a trade and working towards obtaining his licence as a glazier, which he obtained in 1984. Section 45(7) of the pre-1985 Act applied to apprentices and workers learning a trade if their remuneration was of a nominal nature. In determining the worker's entitlement, it was necessary to consider whether the worker met the threshold test of his remuneration being of a nominal nature. Referring to Decisions No. 198/95 and 3223/00, the Vice-Chair noted that an apprentice's remuneration can be nominal, not just if it is insignificant or a pittance but, also, if the apprentice's career development is such that the apprentice wages do not adequately reflect training, experience and skills. The Vice-Chair considered whether, in the context of the case, the difference from the worker's actual wages as an apprentice and the fully qualified wage was nominal.
In this case, the worker was earning $16,800 at the time of his injury. When he received his licence, he received a raise to $29,900, which represents a 44% increase in earnings. The Vice-Chair concluded that the worker's earnings at the time of the accident were of a nominal nature and that the worker was entitled to an earnings basis calculation based on the average earnings of a fully qualified person engaged in the same trade as the worker at the time of the compensable accident.
The appeal was allowed in part.