- Earnings basis (net average earnings)
On October 3, 1998, this now 62 year old worker sustained various injuries in the course of his employment. Decision No. 1852/19 recognized that the worker was entitled to loss of earnings (LOE) benefits from December 31, 2007.
In this appeal the worker disputed the statutory minimum applied to the calculation of his earnings basis used to determine his LOE benefits.Board policy also annually sets out indexed maximum and minimum amounts, see, OPM Document No. 18-01-02. Although this policy was not included in the case materials, Tribunal case law has held the Tribunal is able to rely on its own expertise in identifying applicable policy and does not have to exercise the discretion in s. 126 (3) to ask the Board for the policy. This policy was considered in the appeal.The worker received approximately $11,085.36 per year in partial LOE benefits effective December 31, 2007. It was submitted that $11,085.36 per year fell short of the statutory minimum" for partial LOE benefits, which has varied from $15,312.44 in 1998, to $16,380.00 in 2008 to $18,579.60 in 2020. As a result, the worker's representative submitted the statutory minimum amount for each year should have been paid to the worker as his partial LOE benefit, rather than the approximate $11,085.36 per year, as calculated in accordance with s.43(2). The worker did not dispute the calculations done in accordance with s.43(2) but rather it was argued that an additional step should have been taken to account for the statutory minimum. The statutory minimum amount for payments for partial LOE is only considered if the worker's pre-injury NAE, or 85 percent of the worker's pre-injury NAE, is less than the statutory minimum, which was not the case here. The worker was earning $12.00 per hour at 40.5 hours per week. This was approximately $25,272.00 per year. This exceeded the statutory minimums referred to by the worker's representative in 1998, 2008 and 2020.Section 43(2.2) provides that the minimum amount of the payments for partial loss of earnings is, (a) if the worker's net average earnings before the injury is less than $17,559.98 (b) if the worker's net average earnings before the injury is greater than or equal to $17,559.98, but 85 percent of the worker's net average earnings before the injury is less than $17,559.88. This provision of the Act however was only introduced in 2017. It was not in force on December 31, 2007 which was the date at which LOE benefits took effect in this appeal. Section 43(2) as it was in December 2007 did not explicitly contemplate a statutory minimum for partial LOE benefits. Accordingly, the general formula for calculating LOE benefits under s.43(2) applied unless the worker's earnings did not meet the statutory minimum. Even if s.43(2.2) applied, the provision only contemplated scenarios where the worker's pre-injury earnings were less than the statutory minimum, which was not the case here.The appeal was denied.