Highlights of Noteworthy Decisions

Decision 732 13
31/05/2013
G. Dee - B. Young - M. Ferrari
  • Worker (apprentice)
  • Earnings basis (recurrences) (LOE)

The worker suffered a wrist injury in February 2004. His employment was terminated by the employer in December 2006. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of LOE benefits in December 2006.

At the time of the accident, the worker was earning $13 per hour. However, the worker submitted that he was an apprentice truck trailer service technician and that his pre-injury earnings should be based on the earnings of a journeyman.
The Panel found that the worker and the employer clearly regarded the worker as an apprentice at the time of the accident and that the worker and employer were acting in compliance with the requirements of the truck trailer apprenticeship program but that there formal training agreement in place at the time.
A number of Tribunal decisions have found workers to be apprentices without registration in exceptional circumstances based on the intention of the parties. However, some other Tribunal decisions have required that the formalities of registration be met before status as an apprentice can be recognized.
In the circumstances of the case, it was not necessary to address the issue of whether exceptional circumstances outweighed the formal requirements of Board policy for a registered agreement. When the worker was laid off by the employer in December 2006, he was formally registered as an apprentice. Section 53(6) of the WSIA provides for LOE benefits based on the greater of earnings at the date of the accident or when most recently employed, in circumstances when a worker becomes entitled to LOE benefits arising out of an accident in respect of which the worker previously received benefits. At the time of the lay-off, the worker was an apprentice. Accordingly, he was entitled to LOE benefits on the basis of being an apprentice at the time of the lay-off in December 2006.
The appeal was allowed.