Highlights of Noteworthy Decisions

Decision 176 20
A. Patterson
  • Earnings basis (dependent contractor)
  • Board Directives and Guidelines (earnings basis) (dependent contractor)

The worker was injured in January 2017. The worker appealed a decision of the Appeals Resolution Officer finding that the worker was entitled to benefits with a long-term earnings basis of $29,500 per year.

The Vice-Chair accepted that the worker received a job offer to work in Alberta. However, there was no basis in law or policy to calculate the worker's long-term earnings basis on the alleged employment terms of a prospective job.
The worker was a dependent contractor. Board Operational Policy Manual, Document 18-02-08, on determining average earnings in exceptional cases, provides direction with respect to the determination of the long-term average earnings of dependent contractors.
The worker had income of $24,700 in 2016, of which $21,000 consisted of employment insurance payments. He earned approximately $72,000 in 2012, over $100,000 in 2013, almost $80,000 in 2014, and almost $90,000 in 2015. The worker's significant unemployment in 2016 appeared, therefore, to have been anomalous. However, there is no basis in the policy which would permit the inclusion of more than the 12 months prior to the date of accident in the calculation of the long-term earnings basis.
Document No. 12-03-02, on optional insurance, provides specific direction with respect to the calculation of the long-term earnings basis of individuals, like the worker, who have been a dependent contractors for less than a year. If an individual has operated a business for less than a year at the time of application and requests optional insurance, the Board sets the approved amount of insurance at one-third of the maximum annual insurable earnings ceiling. In 2017, the year of the accident, the maximum annual insurable earnings ceiling was $88,500. One-third of $88,500 is $29,500.
The Board correctly determined the worker's long-term earnings basis, in accordance with the Board policy. The appeal was dismissed.