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Difference between revisions of "Workers' Compensation Claim Benefits (7:XI)"
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Workers' Compensation Claim Benefits (7:XI) (view source)
Revision as of 06:18, 28 December 2020
, 06:18, 28 December 2020→C. Average Earnings
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== C. Average Earnings == | == C. Average Earnings == | ||
As noted above, the Board determines a worker’s | As noted above, the Board determines a worker’s long-term wage rate based on its calculation of their annual “average earnings” and because of this, “average earnings” is an important decision on the worker’s claim. | ||
In general, “average earnings” is set as the worker’s employment income over the one-year period before the injury. Section 33 of the Act provides that the Board must use the exact previous one-year earnings unless the worker meets one of the few exceptions set out in the Act. | In general, “average earnings” is set as the worker’s employment income over the one-year period before the injury. Section 208 (previously 33) of the Act provides that the Board must use the exact previous one-year earnings unless the worker meets one of the few exceptions set out in the Act. If a worker has regular earnings in this one-year period before their injury, this is not difficult. However, if a worker has irregular earnings in this period (for any reason), it is important to consider whether their employment falls within one of the statutory exceptions; if not, it will be difficult for that worker to get a long-term wage rate comparable to their actual earnings at the time of injury. | ||
One exception is for “casual workers’. As noted above, “casual workers” already have their “average earnings” (over the previous year) calculated at the outset of the claim and for these workers, their | One exception is for “casual workers’. As noted above, “casual workers” already have their “average earnings” (over the previous year) calculated at the outset of the claim and for these workers, their short-term wage rate will be the same as their long-term wage rate; both wage rates are likely significantly lower than the worker’s actual wages at the time of injury. This section is rigidly applied. | ||
Another exception is a “new” worker, defined as | Another exception is a “new” worker, defined as when the worker was permanently employed by the accident employer for less than 12 months before the injury. For this type of worker, section 217 (previously 33.3) of the WCA allows the “average earnings” to be calculated based on what a person of similar status employed in the same type and classification of employment would earn in 12 months. However, section 217 is not applicable where the worker’s employment is deemed casual or temporary. | ||
Under section 218 (previously 33.4) of the Act, the Board may also determine average earnings differently in “exceptional” circumstances, if the one-year average would be “inequitable”. This provision does not apply to cases of “casual” workers or to “new” permanent workers as described above. Practice Directive #C9-12 states that an exceptional case is one that is “truly extraordinary”, “unusual”, or “irregular”, such that “the worker’s circumstances in the year prior to the injury fail to provide any meaningful measure of their employment history”. Examples might include a non-compensable illness or injury or maternity/paternity obligations. Under this exception, an officer has discretion to seek a long-term average earnings figure that better reflects the worker’s real income loss, possibly by excluding a significant atypical disruption (i.e. one lasting more than six weeks) or basing the worker’s “average earnings” on a longer or shorter period of time. | |||
Under | Under WCA s 208(3) (previously 33(3.2)), EI benefits are included in the calculation of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an occupation or industry that results in recurring seasonal or recurring temporary interruptions of work”. For a seasonal worker, this is an important distinction as can be seen by the example of a worker injured at work in their first week, after returning from a six-month layoff. If this worker were designated as a “casual worker”, the Board would simply calculate their earnings over the last year (including the period of the long layoff but without counting EI payments) to arrive at the “average earnings” over the one-year period before the injury. This figure would set both their short-term wage rate and long-term wage rate and the only argument for a higher rate would be through the exceptional circumstances covered by section 218 of the Act. However, if the worker is found to be in a “highly seasonal” occupation, their EI benefits would add to the calculations of their “average earnings” and greatly increase their long-term wage rate. In addition, their short-term wage rate (for the first 10 weeks) would be set in the usual manner as being their wages at the time of injury. | ||
Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on their combined earnings at both jobs, up to the statutory maximum. This applies even if the worker’s other job is not otherwise protected by the WCA (Policy #65.02). | |||
Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on | |||
== D. Temporary Wage Loss Benefits (TWL) == | == D. Temporary Wage Loss Benefits (TWL) == | ||
