Highlights of Noteworthy Decisions

Decision 1195 20
C. Huras
  • Board Directives and Guidelines (earnings basis) (recalculation)
  • Earnings basis (dependency benefits)

The worker died in September 2012, due to complications from pulmonary blastomucosis. In Decision No. 2527/18, the Tribunal granted initial entitlement. To pay survivor benefits, the Board conducted a long-term average earnings calculation. The employer was unable to provide the worker's one year prior earnings, as payroll records from 2011 had been destroyed. Accordingly, the Board use a recalculation period from January 2011 to September 2012, based on the worker's T4 earnings, resulting in an earnings basis of about $1,300 per month.

The estate appealed regarding the recalculation, submitting that short-term earnings basis of about $1,400 should be used.
Board Operational Policy Manual, Document No. 18-02-02, states that fatal claims are always based on the worker's long-term average earnings. Document No. 18-02-09 states that the average earnings used to calculate periodic payment for survivors are generally based on the deceased worker's long-term average earnings. Document No.18-02-03 states that the long-term average earnings of a worker in permanent employment are generally the same as a worker's short-term average earnings, but either party can request a recalculation.
In this case, the worker died 12 days after the date of injury and, as such, the Board did not conduct a recalculation of short-term average earnings to long-term average under Document No. 18-02-03. Rather, the Board conducted a long-term average earnings recalculation under Document No. 18-02-09, regarding survivor benefits.
The Vice-Chair found that the survivor benefits should be based on the worker's short-term average earnings. The overriding principle with respect to a worker's loss of earnings is fairness. Document No. 18-02-09 provides that long-term earnings are "generally" used to calculate the period payments for survivors. This allows for exceptions, likely when doing so would result in unfairness to the survivors.
The Vice-Chair was not convinced that the long-term calculation used by the Board was fair, noting that the Board did not use one-year prior earnings, as the employer's records were destroyed in circumstances beyond anyone's control. Document No. 18-02-03 provides that the period for a recalculation may be extended to include the full calendar year before the injury, plus the current year up to the date of injury. However, on the evidence, the Vice-Chair found that the T4 information may have been unreliable in the circumstances.
The Vice-Chair concluded that there were exceptional circumstances warranting use of the short-term average earnings. The appeal was allowed.