Highlights of Noteworthy Decisions

Decision 1919 19
22/01/2020
R. Basa
  • Depression
  • Earnings basis (student)
  • Loss of earnings {LOE} (level of benefits)
  • Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
  • Work transition plan (self-directed program)

The worker was a general labourer at the time of the accident in 2013 when he cut two fingers of his left hand with a mitre saw. He received a 8 % NEL award for the left hand. He also was granted entitlement for psychotraumatic disability. receiving a 15% NEL award for this condition.

On appeal the worker sought entitlement for major depressive disorder, an increase of his 15% inorganic NEL award. The worker also sought entitlement for WT services in the form of reimbursement for the costs of his social service work diploma, as well as LOE benefits. In addition, the worker disputed the calculation of his earnings basis under OPM Document No. 18-02-08 in which the ARO found that the worker was on the career path of becoming a social worker and not a police officer.
The Vice Chair granted entitlement for entitlement for major depressive disorder but confirmed the 15% NEL award.
With respect to WT, the Vice-Chair found that the worker was entitled to reimbursement for the costs of the training as a social worker as this constituted reasonable self-directed LMR. Further LOE benefits however were denied.
With respect to the earnings basis, the worker submitted that this should be based on a career path to become a police officer, as the worker had completed two semesters in a police training program at the time of the 2013 accident. In the alternative the worker argued that calculation should be based on the average industrial wage for the year of the accident.
The Vice Chair found that there was insufficient evidence that the worker was likely to be employed as a police officer, particularly given the unsatisfactory grades he obtained during the first two semesters of this training, which put into question whether he would have successfully completed the program.
The Vice Chair found however that the worker was a student as defined under s. 2 of the WSIA. and that the average industrial wage should be used and not the earnings based on a career path towards becoming a social worker. At the time of the accident social service work was not the career path the worker was considering and was therefore not the likely career path at that time.
Under O. Reg. 175/98 s. 16 and OPM Document No. 18-02-08, where it is not possible to determine a job in which a student worker would likely have been employed but for the accident, the average industrial wage for the year in which the accident occurred is used. Accordingly, the earnings basis calculation was based on this industrial average.