Highlights of Noteworthy Decisions

Decision 1055 17
Z. Onen
  • Loss of earnings {LOE} (employability)
  • Earnings basis (recurrences) (LOE)

The worker suffered a right hand injury in November 2001. The Board granted the worker a 35% NEL award for chronic pain disability, increased to 40% in 2012. The worker returned to modified work on a part-time basis in February 2003, and continued working until June 2009. In Decision No. 26/07, the Tribunal found that the worker was capable of working four hours per day and that she had entitlement for the left hand as a secondary condition.

The worker now appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits in 2009 and regarding the quantum of ongoing LOE benefits.
The worker submitted that she was entitled to LOE benefits in 2009 based on her higher earnings in 2009, pursuant to s. 53(6) of the WSIA. The Vice-Chair noted that the worker was earning $8.35 per hour for a 40-hour week at the time of the accident in 2001, for weekly earnings of $334. In 2009, she was earning $13.28 per hour for a 20-hour week, for weekly earnings of $265.60. Board Operational Policy Manual, Document No. 18-02-03, on determining long-term average earnings, provides that periods of absence due to injury and periods where the worker is compensated through benefits are not included in the calculation of a worker's earnings basis. Thus, the worker's earnings at the time of the original accident in 2001 were higher than in 2009. The Vice-Chair concluded that the worker's earnings basis was correctly calculated.
The Vice-Chair found that the worker was not unemployable. The SO identified by the Board was appropriate for the worker. The worker was not entitled to full LOE benefits. Rather, the worker was entitled to the partial LOE benefits, as determined by the Board.
The appeal was dismissed.