Highlights of Noteworthy Decisions

Decision 216 19
J. Smith
  • Board Directives and Guidelines (earnings basis)
  • Dependency benefits
  • Earnings basis (deemed earnings)
  • Firefighter (volunteer)
  • Loss of earnings {LOE} (retirement)

The worker worked as a millwright for over 30 years until he retired in May 2008. He also worked simultaneously as a volunteer firefighter from 1975 to 2000. He was diagnosed with colon cancer in 1998 and with chronic lymphocytic leukemia in 2004. He died in October 2011. The Board granted a 19% NEL award for the colon cancer and a 25% award for the leukemia. At his death, the NEL award was increased to 100%. The Board paid survivor benefits based on the maximum earnings set by the Board for the year 2004. The Board denied LOE benefits from the worker's retirement in May 2008 until his death in October 2011.

The employer (the municipality for which the worker was a volunteer firefighter) appealed regarding the quantum of survivor benefits. The estate appealed regarding LOE benefits from May 2008 to October 2011.
The applicable Board policies were the versions of the policies in effect on the date of the Board operating level decision. Board Operational Policy Manual, Document No. 18-02-08, on determining average earnings in exceptional cases, applies to volunteer force members. It incorporates by reference Document No. 12-04-02, on volunteer forces. Document No. 12-04-02 sets out provisions of the WSIA, including s. 78(3), that the statement by a deemed employer of a municipal volunteer fire brigade must set out the deemed earnings for each member for the purposes of the insurance plan. With respect to earnings selected by the deemed employer, the policy states that he amount cannot be greater than the maximum earnings ceiling set by the Board and must be a least half the annual maximum earnings ceiling. The policy also provides that deemed Schedule 2 employers will record the amount of earnings selected annually and must submit the written amount of earnings selected. In addition, policy provides that it is the amount recorded by the deemed employer, not the volunteer worker's actual earnings from regular employment, which is used to determine the volunteer's net average earnings.
In this case, the municipality accident employer was a Schedule 2 employer. The employer submitted that, as a Schedule 2 employer, it was not required to record deemed earnings annually under Board policy, as is required for Schedule 1 employers. Since the employer did not report deemed earnings in 2004, the employer submitted that deemed average earnings should be zero for the purposes of calculating the quantum of survivor benefits or, alternatively, average earnings used should be the statutory minimum.
The Vice-Chair noted that Document No. 12-04-02 was silent on the manner in which a volunteer worker's average earnings will be determined in cases where the deemed employer does not record the deemed amount of earnings. However, Document No. 14-02-11, on insurable earnings, states that, when a deemed employer does not specify a selected amount for a volunteer's insurable earnings, the Board automatically extends insurance at the annual maximum. The Vice-Chair found that Document No. 14-02-11 applied to deemed employers of volunteer forces, whether those employers are in Schedule 1 or Schedule 2.
The employer then submitted that the worker was part-time in the volunteer firefighter position and that his earnings should be calculated based on 50% of the statutory maximum. However, the Vice-Chair found that Document No. 12-04-02 states that the elected amount deemed by the employer is used to calculate benefits.
The Vice-Chair concluded that the Board correctly based survivor benefits on the Board's maximum earnings in 2004.
The Vice-Chair also concluded that the worker decided to retire in May 2008, because he could no longer continue to work due to the decline in his condition related to his leukemia. His loss of earnings resulted from his compensable condition, and he was entitled to LOE benefits from May 2008 until his death in October 2011.
The appeal of the employer was dismissed. The appeal of the worker's estate was allowed.