- Earnings basis (long-term)
- COVID-19
The issue under appeal was the calculation of the worker's long-term average earnings for the determination of his Loss of Earnings (LOE) benefits rate.
The Vice-Chair allowed the appeal.The language of subsections 53(1) and 53(3) of the WSIA grant broad discretion as to whether a recalculation is warranted and with respect to the evidence which may be relied upon. Fairness is the "overriding consideration" in recalculating the worker's average earnings as a worker's long-term average earnings should reasonably reflect what the worker would have earned if not for the compensable injuries resulting from the workplace accident.Using the worker's income during the period from December 15, 2020 until December 15, 2021 did not fairly represent the worker's loss of earning after April 25, 2022. The worker's earnings during this period were depressed as a result of temporary lay-offs and reduced hours related to supply chain issues. These supply chain issues were exceptional and related to disruptions resulting from production shut-downs caused by COVID-19 mandates.The Vice-Chair accepted that the worker's long-term average earnings should be calculated based on his 2019 earnings - when the company's availability of work in 2022 returned to a similar level as prior to the pandemic. It was accepted that the worker would have been working 50-60 hours per week in 2022 and in 2023 had he been able to work.