- Earnings basis (job sharing)
- Earnings basis (long-term)
The worker was employed as a police communicator. The worker appealed a May 19, 2023 ARO decision which confirmed that the worker's job share arrangement (JSA) was a non-earning period that should not be excluded from the long-term rate recalculation.
The Vice-Chair denied the appeal. The WSIB had appropriately included the non-earning periods of the worker's job share arrangement in the long term rate recalculation. The worker was hired as a full-time permanent employee. The worker participated in a JSA between August 2009 and March 21, 2018. This involved the worker sharing her job with another employee, where both employees worked 20 hours per week. This was the number of hours that the worker worked in the year preceding the injury and the eight years prior. The worker's representative submitted that the worker's non-earning periods during the job share should be factored out of her earnings calculation as her participation in her JSA was temporary, during a period of time the worker was raising her young family. OPM Document No. 18-02-03 states that the long-term average earnings are usually the same as short-term average earnings. However, the long-term average earnings may be recalculated if it is unfair to continue paying LOE benefits based on the short-term average earnings. Therefore, the long-term earnings basis should fairly reflect the worker's average earnings before the injury. The Vice-Chair found that as of August 2009, there was a break in the worker's employment pattern. As of this date the worker no longer worked full-time and consistently worked 20 hours per week. The worker's short-term, average earnings were the same as her long-term, average earnings, since the worker had the same pattern of employment since 2009. The Vice-Chair noted that it would be unfair to calculate the worker's long-term earnings based on a 40 hour work week since the worker had not worked a 40-hour work week for almost nine years. .The non-earnings periods in this appeal (20 hours a week) were part of the worker's employment pattern. As a result, these earning periods were correctly factored into the recalculation of the worker's earnings basis. The Vice-Chair noted that there is no provision in the Act or WSIB policy to permit recognition of prospective or projected pay increases in the calculation of LOE benefits. Rather, the long-term earnings basis should fairly reflect the worker's average earnings before the injury. The Vice-Chair noted that the length of time a worker participates in a certain employment arrangement is significant. The partial hours worked as a result of the JSA were not analogous to a parental leave or an unpaid leave of absence. The reduction of hours due to the JSA was part of the worker's employment pattern (unlike a parental leave, which is not.)