- Earnings basis (concurrent employment)
- Firefighter (volunteer)
- Loss of earnings {LOE} (level of benefits)
- Statutory interpretation (principles of) (legislative intent)
- Permanent impairment {NEL} (degree of impairment) (incontinence)
The worker was mainly a full-time tradesman, having worked for many years for a heating and cooling company. He also had a second volunteer fire-fighting position. The worker appealed the following issues: a) the earnings basis used to pay full Loss of Earnings (LOE) benefits from May 15, 2008 to August 1, 2008, and from August 1, 2008 to July 11, 2010; b) the calculation of the partial Loss of Earnings (PLOE) from July 12, 2011 to January 1, 2016; c) a denial of entitlement to loss of earnings (LOE) benefits from January 1, 2016; and, d) the 13% Non-Economic Loss (NEL) award for upper urinary track impairment.
The appeal was allowed, in part.The worker's counsel focused on Bill 92 of the Ontario legislature, a members bill that was intended to amend certain provisions of the WSIA with respect to certain provisions relating to members of municipal fire brigades and municipal volunteer fire brigades, amongst other services. It was acknowledged that Hansard and other extrinsic evidence can be used to interpret the purpose or objective of legislation. However, in the Vice-Chair's view, there was not ambiguity in the law and policy surrounding the worker's earnings calculations that would allow the Vice-Chair to weigh heavily the Hansard debates or legislative intent. Nor was there a challenge of the law and policy directly, which would permit a greater excursion into legislative interpretation. In this case, the issues concerned specific language and methods well described in the law and in the underlying policy that the Tribunal is required to apply according to section 126 of the WSIA. Under OPM Document No. 18-02-08, the average earnings for members of a volunteer force, such as a volunteer fire brigade, is the amount selected by the municipality, and is not subject to review or recalculation. The worker's earnings were calculated on the basis of the 2008 maximum coverage amount provided by the deemed employer for fire fighters, as confirmed by the Board payment specialist. According to Board OPM Document No. 12-04-02, the earnings amount selected by the employer cannot be greater than the maximum earnings ceiling. The worker's earnings were therefore correctly calculated, according to unambiguous policy language. The Vice-Chair also found the LOE determinations from July 12, 2011, and as of January 1, 2016, to be correct. It was correctly determined that the worker was entitled to partial LOE benefits from July 12, 2011 to January 1, 2016. The worker was able to restore his pre-injury earnings by January 1, 2016, which disentitled him to LOE benefits at that point.The Vice-Chair concluded that the appropriate rating for this worker's upper urinary tract impairment was 25%. This rating was to be combined with the worker's other NEL impairments to reach an overall NEL rating. An example was noted under the second class rating for upper urinary tract impairments that identified a man with progressive chronic kidney disease to the extent that a transplant was required. The individual required close observation and ongoing immunosuppressing medication. The diagnosis was a functioning renal transplant, and an impairment rating of 25% of the whole person due to renal disease and the need for continuous medication. This was considered similar to the worker's overall condition.