Document name

Compensation Rate – Casual and Seasonal Employment

Document number

POL 35/2010

Average weekly earnings, as determined by Section 70(1) of The Workers’ Compensation Act, 2013 (the “Act”), means the greater of:

1. 1. One fifty-second of the worker’s earnings for the 12 months preceding the commencement of the worker’s loss of earnings  resulting from the injury; and
   2. The rate of daily, weekly, monthly or other regular gross earnings that the worker was receiving at the commencement of the worker’s loss of earnings resulting from the injury converted, in the case of a daily, monthly or other rate that is not a weekly rate, to a weekly amount.

Gross earnings means the worker’s earnings from all sources of employment, before all deductions, within an industry under the scope of the Act or for which coverage has been elected.

Average gross earnings means the worker’s gross earnings, divided by the number of weeks in a particular period of time.

Regular gross earnings means the daily, weekly, monthly or other gross earnings a worker normally received prior to the commencement of the loss of earnings (e.g., agreement of hire typically requires the worker to work and be paid for 40 hours per week at $25.00 an hour).

Casual worker means a person who works full or part-time normally for a period of less than three months usually to meet peak or periodic demands. Those who work at holiday periods, during stocktaking or on call would qualify as casual workers.

Part-time worker means a person who regularly works less than 30 hours per workweek.

Seasonal worker means a person who works full or part-time for a period of more than three months but less than one year. This typically occurs in such industries as farming, forestry, oil drilling, construction and maintenance for municipalities, towns and villages that are busiest during periods of favourable weather.

Persons regularly employed in the same grade of employment means similar workers in the same industry working under the same terms and employment pattern as the injured worker. In other words, workers in the same job classification working under the same conditions for the same pay and for sufficient time to accurately determine a typical annual gross earning level. Examples are seasonal woodcutters, seasonal grader operators and farm labourers.

Inequitable, in relation to Section 70(4) of the Act, means compensation benefits that do not accurately reflect the worker’s loss of earnings (e.g., seasonal positions where an average of the worker’s earnings over a short period of time does not accurately reflect the amount of long term earnings expected for the type of employment). An equitable earnings loss benefit rate is fair and reasonable in considering all the circumstances of a particular case (i.e., the worker’s employment history, pattern, employment status, etc.). Consequently, it is important that each case is judged on its own merit when determining an equitable compensation rate since many cases will not conform to usual circumstances.

1. Section 68(1) of the Act directs that if an injury to a worker results in a loss of earnings beyond the day of the injury, the Workers’ Compensation Board (WCB) shall determine the loss of earnings resulting from the injury and shall ensure compensation to the worker:
   1. In the case of a worker who sustained an injury prior to September 1, 1985, in an amount equal to 75 per cent of that loss of earnings; or
   2. In the case of a worker who sustained an injury on or after September 1, 1985, in an amount equal to 90 per cent of that loss of earnings.
2. Section 70(4) of the Act states that in determining the average weekly earnings of a worker, the WCB shall take into consideration the average earnings, as determined by the WCB, that were earned by a person regularly employed in the same grade of employment if:
   1. The worker was not available for employment for the full period of 12 months preceding the commencement of their loss of earnings resulting from the injury; or
   2. In the opinion of the WCB, it is inequitable, by the casual nature or the terms of the worker’s employment, to compute the worker’s average weekly earnings in accordance with subsection (1).
3. Establishing a wage rate for part-time, casual and seasonal workers is a challenging process, as these workers are typically not employed for the full 12 months prior to commencement of earnings loss or recurrence of injury, which sometimes leads to inequitable earnings loss compensation. Therefore, a policy is required that clarifies the intent of the WCB to base compensation benefits on what will most fairly and accurately represent the worker’s initial and long-term loss of earnings.

Initial Compensation

1. Upon the commencement of earnings loss resulting from an injury, workers will qualify for wage loss benefits. These benefits will normally be based on the regular rate of pay or gross earnings that the worker was receiving over the 52-week period prior to the commencement of earnings loss or recurrence of injury. POL 06/2016, Establishing Initial Wage Base, will apply.
2. Where there are no regular gross earnings to establish earnings loss under Section 70(1) of the Act (e.g., commissioned sales persons who have worked only a few days or weeks and have no sales yet), Section 70(4) of the Act may be applied to establish an initial wage base that would more appropriately reflect the worker’s loss of earnings.
3. If the application of Section 70(4) of the Act supplies a lower rate of benefits than an average of the worker’s earnings over the period 52 weeks prior to the commencement of loss as called for by Section 70(1), the average of the 52-week period will apply.
4. There may be situations where using the rate of pay at the commencement of loss or the 52-week period prior to the commencement of earnings loss to calculate the worker’s wage rate would be inequitable. Therefore, the WCB will ensure that each claim is adjudicated on its own merits to calculate an equitable wage rate. Consideration will be given to the worker’s employment history and pattern, employment status with the injury employer and gross earnings over a period of time that more appropriately reflects to the worker’s loss of earnings.

Review of Compensation

4. Where the worker is employed in seasonal, casual or part-time work and has been in receipt of wage loss benefits for a total of 26 weeks (consecutive or cumulative), the WCB may adjust the initial wage rate to more fairly and accurately reflect the injured worker’s long-term regular gross earnings and employment pattern.
5. Where the initial earnings loss calculated using Section 70(1) of the Act is considered inequitable for calculating entitlement, benefits will be recalculated based on the provisions of Section 70(4) of the Act. Consideration may be given to the average gross earnings and employment pattern of a worker performing the same work with the same employer, or where there is no such person, a worker in the same class of employment in the same industry.
6. Where the wage rate is recalculated to reflect the worker’s long-term average gross earnings, the revised wage loss benefits will become effective the first workday of the 27th week of wage loss benefits. Recalculation will not occur prior to advance notification.

Recurrence of Injury

7. Where a worker is employed in seasonal, casual or part-time work at the time of a recurrence, and the calculation of a wage rate using the provisions of Section 70(1) of the Act is considered inequitable, the wage rate used will be based on the provisions of Section 70(4) of the Act. If the wage rate established in conjunction with the initial commencement of loss supplies a higher rate, the initial wage rate will be used.