Highlights of Noteworthy Decisions

Decision 787 22
L. Gehrke - S. Sahay - S. Roth
  • Earnings basis (job sharing)
  • Non-economic loss {NEL} (calculation)
  • Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
  • Earnings basis (long-term)
  • Earnings basis (average weekly earnings) (twelve months or lesser period)
  • Board Directives and Guidelines (earnings basis) (permanent employment) (break in employment pattern)

The issues under appeal were: a) the quantum of the 25% non-economic loss (NEL) award for Traumatic Mental Stress (TMS); and, b) determination of the worker's earnings basis from May 17, 2013, based on 20 hours of work per week at $42.29 per hour. In addition, the worker's representative provided a Notice of Constitutional Question.

The appeal was allowed. It was not necessary to address the constitutional issues raised.
The evidence indicated that after an attempted return to work, the worker's condition worsened, and it became apparent that she was incapable of a return to work. There was a regression in the worker's condition after this. The Panel found that the worker was at a mid-to-high range of the moderate impairment level, and the worker's NEL award was increased to 35%.
Furthermore, the basis for recalculation of earnings basis is found in section 53(3), which states that the Board shall recalculate the amount of a worker's average earnings whenever the Board determines it would not be fair to continue to pay benefits on the basis of the average earnings determined under section 53(1). The recalculation period is 12 months before the injury or a lesser period, and may be shortened if there is a break in the employment pattern. According to Board policy, a break in the employment pattern is a change that is significant enough to make the prior period irrelevant to the determination of long-term earnings (see Decision No. 1171/18).
The Panel found that the worker was hired by the employer as a permanent full-time employee. The worker's employment status did not change as a result of her participation in the job sharing program (JSP). Thus, there was no break in the worker's employment pattern. The Panel found that a recalculation of the worker's long-term earnings basis was required to achieve fairness. OPM Document No. 18-02-03 provides that non-earning periods that are not part of the employment pattern are factored out of the recalculation. This warranted the exclusion of the worker's non-earning periods during the one year recalculation period. The periods in which the worker was not earning while participating in the JSP were analogous to an unpaid leave of absence as the worker participated in the JSP to help care for her young children. Parental leave and unpaid leave are exceptional circumstances under the OPM Document No. 18-02-03. As a result, the Panel found that the worker's long-term average earnings profile should be calculated by using the worker's earnings in the year prior to the accident, but shortening the recalculation period by six months to account for the days when the worker was not working as a result of the JSP.