Highlights of Noteworthy Decisions

Decision 2264 19
09/04/2020
A. Patterson
  • Earnings basis (short or casual employment)
  • Future economic loss {FEL} (calculation) (Canada Pension Plan) (retroactivity)

The worker was a truck driver. In April 1995, he was injured on the sixth day of his first trip for the trucking company. In Decision No. 207/05, the Tribunal found that the worker was a worker in the course of employment at the time of the accident and that, accordingly, his right of action was taken away. The worker then applied for workplace insurance benefits. The Board granted a 72% NEL award and full FEL benefits.

The worker now appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits and the offset of the FEL benefits by full amount of CPP disability benefits.
The Board calculated the worker's wage loss benefits and FEL award based on the average industrial wage for the occupation of a truck driver in Ontario at the time of the accident of $11.15 per hour, for a 40-hour work week.
Section 40(1)(a) of the pre-1997 Act contemplates the use of actual hourly or daily wages. That provision was not applicable in this case because the nature of the worker's employment relationship with the trucking company, and the brief duration of that relationship, preclude actual hourly earnings.
Section 40(1)(b), which allows consideration of past earnings up to a year prior to the accident with the same employer, was also inapplicable, due to the brief duration of the worker's employment with the accident employer.
Section 40(2) is explicitly applicable to the worker's situation. It allows broad discretion, as evidenced by the term "regard may be had to," either to the earnings of a different worker with the same employer performing the same work, or those of a person in the same grade employed in the same class of employment in the same locality.
There was no evidence in the case materials relating to the earnings of a different truck driver with the same employer for the prior 12 months prior to the accident. Therefore, use of the National Occupational Classification wage report was consistent with section 40(2). Although "regard may be had to" that information, certain other factual elements should also be taken into consideration in the determination of the worker's earning basis in this case.
First, the worker had prior experience of a decade of truck driving. Secondly, the worker was employed as a long-distance freight truck driver and, as such, it was reasonable to conclude that he would have worked more than 40 hours per week.
In the circumstances, the Vice-Chair concluded that it was reasonable and equitable to base benefits on earnings of $14 per hour, the upper range of the NOC wage report for truck drivers.
The CPP disability benefits were received by the worker for the injury. The 100% offset was appropriate.
Prior to the WSIA, the FEL benefit could only be reviewed at specific times. After entry into force of the WSIA on January 1, 1998, the FEL benefit could be reviewed when a material change in circumstance occurred. In this case, a material change in circumstance (receipt of CPP benefits) occurred, but could not trigger a FEL review until January 1, 1998. The ARO correctly offset the FEL benefits by the amount of the CPP disability benefits retroactive to January 1, 1998.
The appeal was allowed in part.