Highlights of Noteworthy Decisions

Decision 517 22
K. Jepson
  • Earnings basis (average weekly earnings)
  • Statutory interpretation (principles of) (legislative intent)

The issue to be determined in this appeal was the correct earnings basis to be used when calculating and paying the worker's LOE benefits.

The worker's appeal was denied.
The Vice-Chair noted that Section 53 of the WSIA provides that the Board shall calculate average earnings for these specified types of workers, including apprentices, as prescribed by regulation. It is therefore appropriate for the Average Earnings - Exceptions policy to reflect the precise language of the Regulation.
The worker was employed as a journeyman. The wage was agreed upon through the union hall to be set at $20.00 per hour. It was noted that neither the Regulation nor the policy provides for secondary inquiries into why a worker's employer pays the wage it does to a journeyman or person employed in a similar trade. The prescribed calculation for apprentices does not take into consideration whether the employer's wages for journeyperson were fair or ought to have been different. The Vice-Chair stated that this is in keeping with the intent of the legislation, which is to replace the lost income that a worker would have earned from their employer had the injury not occurred. The language in the regulation is clear: the wage to be used for an apprentice "shall be determined with reference to the average earnings of a journeyperson employed by the employer in the same trade as that in which the worker was working when injured."
Accordingly, the Vice-Chair found that the Board correctly applied section 53 of the WSIA, section 16 of O. Reg. 175/98, and the relevant Board policy when it set the worker's average earnings at $20.00 per hour.