Highlights of Noteworthy Decisions

Decision 1269 14
S. Martel
  • Earnings basis (occupational disease)
  • Earnings basis (dependency benefits)
  • Loss of earnings {LOE} (retirement)
  • Board Directives and Guidelines (earnings basis) (occupational disease)

The worker was a firefighter from 1965 to 1980. He then worked at other jobs, mostly and most recently as a courier driver, until he was laid off in April 1999. He was apparently still looking for work until, in December 1999, he was diagnosed with acute myelocytic leukemia (AML). He died in February 2000. The Board paid LOE benefits from December 1999 to February 2000, based on the worker's most recent earnings as a courier driver. The Board paid survivor benefits based on the earnings of a fully qualified firefighter on the date of the accident, which was in December 1999. The employer appealed a decision of the Appeals Resolution Officer regarding the determination of survivor benefits.

Board Operational Policy Manual, Document No. 18-02-02, on determining short-term average earnings, provides that, in the case of long latency occupational disease claims, no distinction is made between short-term and long-term averaged earnings; in all cases, average earnings are based on the greater of annual earnings of a full qualified worker at the time of the accident or annual earnings of the worker in the 12 months prior to the accident. Decision No. 1581/06 found that this policy did not apply in the case of a retired worker because s. 43 of the WSIA cannot be interpreted as allowing LOE benefits for any reason other than a loss of earnings. Workers who are completely retired with no intention of returning to the work force for reasons unrelated to the compensable condition cannot reasonably be considered to have a loss of earnings as a result of the injury.
Section 43 is intended to address the economic loss caused to a worker's regular income in the future. When a worker is retired with no intention of returning to the work force, there is no such loss. The Vice-Chair was of the view that the same rationale applies to a worker who has no intention of returning to work in the occupation where the worker contracted the occupational disease, as evidenced by removal from the occupation for a long period of time.
In this case, the worker's disease was related to his firefighting duties but the quantum of his loss from an earnings perspective was not linked to his firefighting duties. He had not worked as a firefighter for almost 20 years. He had been working as a courier for 11 years and was still looking for employment. He was not retired from the work force. The Board correctly based LOE benefits on his most recent earnings as a courier.
The Vice-Chair agreed with Decision No. 1364/12 that s. 53(1) provides for the calculation of average earnings for all purposes of the WSIA, including determinations made under s. 43 and s. 48. Section 53(1) should not be interpreted as authority for granting a fictitious loss to the worker or his survivors based on employment he was not held for almost 20 years, and Document No. 18-02-02 relating to long latency occupational disease does not apply to a worker who has not worked for many years in the occupation that resulted in the disease.
Accordingly, the periodic survivor benefits under s. 48(3) should be based on the worker's earnings at the time of the injury, which were his earnings in his last employment as a courier driver.
The appeal was allowed.