Highlights of Noteworthy Decisions

Decision 2780 16
S. Netten
  • Board Directives and Guidelines (earnings basis) (recalculation)
  • Earnings basis (long-term)
  • Board Directives and Guidelines (earnings basis) (permanent employment)

The worker suffered a low back injury in a fall at work in October 2009. In Decision No. 2219/14, the Tribunal found that the worker was entitled to full LOE benefits. The worker now appealed a decision of the Appeals Resolution Officer regarding calculation of his long-term earnings basis.

The worker was originally hired by the employer through the union hiring hall in March 2008. He worked until January 2009, when he was temporarily laid off. He then received EI benefits and did not work elsewhere. He was recalled in September 2009, and worked for three weeks until the accident. The Board based short-term benefits on earnings during the three weeks from the recall to the accident of $1,300 per week, and long-term benefits on earnings and EI benefits during year prior to the accident of $675 per week.
The worker was in permanent employment. This was an appropriate case for recalculation of the long-term earnings basis. Board policy provides that the recalculation period is generally 12 months. The recalculation period can be shortened due to a break in the employment pattern but it can also be extended to include the full calendar year prior to the accident but it cannot be extended beyond the break in the employment pattern. Non-earning periods, such as temporary lay-offs, are included in the recalculation period, with corresponding EI benefits included as earnings.
In this case, the break in the employment pattern was in March 2008, when the worker was hired by the employer. The lay-off in January 2009, was a temporary lay-off, although it was fairly long. Earnings during the usual recalculation period of one year would be unfairly skewed by the short period of work for three weeks and the long lay-off of eight months. Given that the worker worked from March 2008 to January 2009, an eight-month lay-off would not be expected.
In the circumstances, the Vice-Chair extended the recalculation period to March 2008. Long-term benefits should be based on earnings and EI benefits received by the worker from March 2008 to the date of the accident in October 2009. This resulted in a long-term earnings basis of $890 per week.
The appeal was allowed.