- Earnings basis (bonus)
- Loss of earnings {LOE} (review) (after seventy-two months) (further review)
The worker was granted entitlement for repetitive strain injuries to his forearms/wrists, shoulders, and neck. The issues under appeal were: a) the quantum of the Loss of Earnings (LOE) benefits from January 1, 2010 to May 19, 2010; and, b) the quantum of LOE benefits from May 19, 2010 to age 65.
The appeal was allowed. The worker's representative submitted that the January 1, 2010 LOE should be based on actual earnings. The lock-in earnings should be based on earnings up to the lock-in date, and should not include the June earnings or the parking bonus. The Board had accepted the SO that he was working in, and therefore must use the earnings in that SO to calculate his LOE benefit. The Vice-Chair agreed. As of January 1, 2010, the worker was employed in the SO that the Board later found to be appropriate for him. His actual earnings should be used to calculate his LOE benefit for that time period.With respect to the quantum of LOE benefits from May 19, 2010 to age 65, the worker's representative submitted that there was nothing in the legislation to allow the bonus earnings to be included after the lock-in date. The Vice-Chair agreed with these submissions. There were no exceptional circumstances which would warrant delaying the lock-in of the worker's LOE benefit. The bonus and the parking reimbursement did not occur until June 2010, which was after the lock-in date. Decision No. 2027/17 supports a finding that an increase in a worker's earnings after the 72-month lock-in date does not affect LOE entitlement at or after the final review. The only post-72-month events that can affect a worker's LOE entitlement are the ones enumerated in section 44 (2.1) of the WSIA. Accordingly, the worker's earnings basis from May 19, 2010 to age 65 was to be determined based on his actual earnings in the SO of Post-secondary Teaching and Research Assistants, without the bonus or the parking expense reimbursement.The Vice-Chair agreed that this situation was analogous to that of CPP disability benefits that are received after the lock-in date. The provision in OPM Document No. 18-01-13 that prevents the Board from offsetting CPP disability benefits that are awarded after the final review, unless a section 44 (2.1) exception applies, is in line with the principle that an increase in a worker's income after the lock-in date does not affect LOE entitlement at or after the final review. Additionally, with respect to parking expenses, Tribunal case law is clear that reimbursements for parking expenses incurred during the course of employment are not included in the earnings basis (see Decision No. 3422/00).