Highlights of Noteworthy Decisions

Decision 1336 15
S. Netten
  • Board Directives and Guidelines (LOE) (worker earning at time of determination)
  • Loss of earnings {LOE} (level of benefits) (hours of work)
  • Loss of earnings {LOE} (review) (final)

The worker suffered a shoulder injury in 2007. An SO was identified. The worker retrained and found work in the SO. The Board granted partial LOE benefits based on the difference between his pre-injury and post-injury earnings. The worker appealed, regarding the number of hours of work on which his post-injury earnings should be based.

Prior to the accident, the worker had been working 37.5 hours per week. After completion of the work transition plan, the case manager projected entry-level earnings of $15 per hour. However, the job found by the worker paid $13 per hour, for 40 hours per week. The Board based LOE benefits at the final review on those actual earnings of $13 per hour, 40 hours per week.
The worker submitted that his LOE benefits should be based on his actual earnings of $13 per hour but with post-injury hours deemed at 37.5, which he had been working prior to the accident. The worker relied on a stipulation in Board policy Manual, Document No. 19-03-03, on determined suitable employment or business and earnings, that a SEB should meet, as closely as possible, the number of hours worked prior to the injury. The Vice-Chair noted that this policy was revised in 2010, and that the current version states only that a worker working part-time pre-accident hours is not expected to significantly increase the number of hours; it does not address expectations for full-time workers.
The worker relied on two Tribunal decisions that used pre-accident hours in calculating post-injury earnings. However, the Vice-Chair distinguished those decisions in that they dealt with workers who had not yet found employment. That necessarily entails a best estimate of what a worker is able to earn, in which case it is consistent to apply an expectation of pre-accident hours. However, where the worker is working as in this case, Board policy unequivocally requires use of actual earnings to calculate ongoing partial LOE benefits. In selecting an SO, a worker might be expected to work pre-injury hours at a projected rate. However, if that worker in fact works more hours or for higher wages, this will mitigate the wage loss and reduce LOE benefits; if actual hours or wages are lower, and this is not due to under-motivation, LOE benefits will be higher than anticipated in the plan.
The Board correctly based LOE benefits on actual earnings, using actual wages and actual hours. The appeal was dismissed.