Highlights of Noteworthy Decisions

Decision 129 16
J. Frenschkowski - S. Sahay - J. Crocker
  • Worker (apprentice)

The worker suffered a low back injury in December 2003, for which he was granted a 33% NEL award. The worker appealed a decision of the Appeals Resolution Officer finding that the worker was not an apprentice at the time of the accident and denying further benefits after August 2007.

The employer was a sheet metal contractor. The worker was not registered as an apprentice under the Trades Qualification and Apprenticeship Act, and he had not signed a contract of apprenticeship with the employer.
The collective agreement indicated a distinction between the type of work performed by labourers and the type of work performed by journeymen and apprentice sheet metal workers. However, some of the types of work were not defined and it could not be established definitely that the work performed by the worker was that of an apprentice.
The collective agreement that first year apprentices are paid 40% of the base journeyman rate, which would have been $8.50 per hour. The base rate for labourers was $16 per hour, and for newly hired labourers was $13.25 per hour. The worker was paid $9.80 per hour, which did not correspond exactly to any of the rates in the collective agreement but was closer to the apprentice rate that the newly hired labourer rate.
The original Form 7 filed by the employer for the accident listed the worker's occupation as a sheet metal apprentice.
Considering the worker's wages and the Form 7, the Panel concluded that the worker was a sheet metal apprentice at the time of the accident.
The worker's LMR services were inappropriately closed in April 2007. The worker conducted self-directed LMR activity that was appropriate in the circumstances. The worker was entitled to further LOE benefits and an assessment to determine whether he would benefit from further LMR services.
The appeal was allowed.