Highlights of Noteworthy Decisions

Decision 2783 16
S. Netten
  • Board Directives and Guidelines (earnings basis)
  • Earnings basis (seasonal employment)
  • Earnings basis (long-term)

The worker suffered compensable injuries in 1995 and 1996. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits.

The worker requested recalculation of the earnings basis in both claims under s. 40(1)(b) of the pre-1997 Act. Under s. 40(1)(a) the Board calculates the daily or hourly rate of the worker's earnings. At the time of the 1996 accident, the worker was not being paid a daily or hourly rate. Rather, she was being paid per mile driven. In the absence of an hourly or daily rate, an average weekly rate is determined by consideration recent wages. In any event, the calculation under s. 40(1)(a) did not fairly represent the average earnings.
The worker was in ongoing seasonal employment. A seasonal lay-off was characteristic of the worker's employment cycle with the employer. In calculation earnings during the previous 12 months under s. 40(1)(b), the lay-off must be factored in. Employment insurance benefits received during the lay-off period should also be included.
The worker suggested that a single earnings basis should be used for both claims. However, the Vice-Chair noted that calculation of average earnings is based on earnings preceding the relevant date of accident. Therefore, two separate calculations are required.
Calculation under s. 40(1)(a) did not fairly represent the worker's average earnings. In the 1995 claim, the s. 40(1)(a) calculation overstated the worker's loss of earnings by ignoring the pattern of employment over time. In the 1996 claim, the s. 40(1)(a) calculation understated the loss of earnings by focusing on the immediate pre-accident period, during which the worker had limited work available to her. For both claims, the s. 40(1)(b) recalculation considers earnings and employment pattern over a one-year period, and provides the fairest approximation of probable loss of earnings.
The appeal was allowed in part.