Highlights of Noteworthy Decisions

Decision 1324 21
S. Ryan
  • Board Directives and Guidelines (earnings basis)
  • Earnings basis (overtime)
  • Merits and justice
  • Loss of earnings {LOE} (wage loss) (overtime)

The worker, a shipper/receiver, injured his shoulder on July 29, 2016. He continued to work on modified duties until March 17, 2017, when he had surgery on his shoulder. The worker did not receive LOE benefits from July 29, 2016 to March 17, 2017 because the Board determined that his actual earnings were greater than his average pre-accident earnings. The worker appealed a decision of the Appeals Resolution Officer denying entitlement to LOE benefits from July 29, 2016 to March 17, 2017. The worker submitted that he was unable to work overtime due to his injury and modified duties.

The appeal was allowed.
There was no error in the Board's calculation of the worker's pre-accident short-term earnings and post-accident earnings. There was no indication that the worker worked overtime in the four weeks prior to the accident.
The worker was, however, entitled to a recalculation of his average long-term earnings to take into account overtime. While the Tribunal has generally followed the approach of not allowing a recalculation using long-term average earnings if the worker had yet to receive 12 weeks of LOE benefits, some decisions have considered fairness and merits and justice to allow a recalculation in exceptional cases. In this case, the worker did not receive 12 weeks of LOE benefits, but that was because his short-term average earnings did not show a wage loss. Using his long-term average earnings would likely show a wage loss after the accident.