- Earnings basis (net average earnings)
- Merits and justice
- Permanent impairment {NEL} (degree of impairment) (knee)
The WSIB determined that the worker's net average earnings (NAE) for the purpose of Loss of Earnings (LOE) benefits should be based on the worker's earnings for one year prior to the workplace accident from March 1, 2017 to February 28, 2018. The issues to be determined in this appeal were: a) the correct amount to be used as the worker's pre-injury NAE for LOE benefits purposes; and, b) whether the worker's left knee NEL award was correctly assessed at 2%.
The Vice-Chair allowed the appeal.The worker's representative argued that the calendar year prior to the injury was not a fair representation of the worker's earning pattern. The hotel the worker was employed at was undergoing renovations at the time of the accident. The Vice-Chair agreed that the worker was working fewer hours at the time of the accident due to the renovations. The Vice-Chair found that the evidence for and against a finding that the renovation would be completed relatively soon after the accident date was approximately evenly balanced. Applying WSIA section 124(2), the Vice-Chair found that the worker should be given the benefit of the doubt. The result was a finding that the worker's shifts would likely have increased back to the pre-renovation levels soon after the workplace accident. This, in turn, weighed in favour of determining her pre-injury NAE taking into account the worker's typical pre-renovation hours.In the Vice-Chair's view, the facts of this case were unusual enough to fall outside typical facts contemplated by OPM Document No. 18-03-02, and were exceptional enough to warrant application of the Merits and Justice policy, and, in turn, a broader look at what calculation best represented the fairest method for calculating the worker's pre-accident earnings and her likely post-accident lost earnings. The intent of the recalculation subsubsection, WSIA section 53(3), was also taken into account. The section is broadly worded, referencing the broad notion of fairness and indicating the Board (and, by implication, the Tribunal) "shall take into account such information as it considers appropriate."When interpreting how to apply section 53(3), the Vice-Chair noted that it was important to take into account the purpose and intention of payment of LOE benefits under section 43: since the goal is to compensate lost income, the goal of calculating NAE was to best estimate the earnings the worker would have had if she had not been injured. In this case, the worker's earnings would have likely been higher post-accident than the reduced hours due to the renovation. The Vice-Chair agreed that a longer time period was a fairer way to ascertain the worker's typical earning pattern and thus her likely lost earnings. The Vice-Chair found that the worker's pre-injury NAE was to be calculated using all earnings from January 1, 2016 to February 28, 2018 inclusive. The Vice-Chair found that the correct rating of the worker's left knee NEL award was 5%. In a Lower Extremity Specialty Program Workwell Functional Capacity Evaluation (FCE) done on April 26, 2019, the worker's knee flexion was measured at 115 degrees. The Vice-Chair agreed that the worker's earlier MMR date did not preclude consideration of medical evidence after that date. The Vice-Chair agreed that fractional ratings should not be used, and where they might otherwise occur, it was appropriate to round fractional rating upwards. Applying Table 46 to that lower extremity rating, a 13% impairment of the lower extremity yielded a whole person impairment rating of 5%.