Document name

Compensation Rate – Where No Earnings at Disablement or Death

Document number

POL 08/2007

Early Retirement for the purpose of this policy occurs when a worker ceases employment for reasons not related to a work injury prior to attaining the age of 65.

1. The Board interprets the intent of The Workers’ Compensation Act, 2013 (the “Act”) not to penalize the worker who persisted in employment initially, nor to deny benefits where the nature of the injury does not produce disability or death immediately.
2. Where a work injury results in disablement, the Act directs the payment of compensation for earnings loss to an injured worker or the surviving dependent spouse based on the earnings at the commencement of loss of those earnings.
3. There are circumstances, however, where there are no employment earnings at the time of disablement or death on which to base the calculation of compensation benefits (e.g., a latent occupational disease has become symptomatic or causes death after a worker is no longer involved in the workforce, a government-sponsored unpaid learner is injured, etc.).
4. Section 20 of the Act allows the Workers’ Compensation Board (WCB) to determine the average weekly earnings where there are no employment earnings on which to base the calculation of compensation benefits.
5. Sections 68(1) and (2) and Section 69(1) of the Act provide for the compensation payable at the commencement of the loss of earnings resulting from an injury and for annual reviews of those earnings. Section 69 of the Act also provides for the indexing of the average weekly earnings based on increases in the Consumer Price Index.
6. Section 72 directs the compensation payable in the case of a recurrence. Payments of benefits to injured workers is restricted from going beyond age 65, unless allowed under Section 71 where a worker is age 63 or older at the commencement of their loss of earnings.
7. Section 70(5)(b) of the Act sets out the minimum wage base for those claims where the wage loss imposed by a work injury extends beyond 24 consecutive months.
8. Section 81(1) of the Act defines the amount of allowances for dependent spouses, payable for five years or longer if there are dependent children, who survive an injured worker.

Wage loss benefits will not be paid to a worker who is retired or early retired based on the above definition. Where a disability recurs or the retired worker suffers an occupational disease that becomes evident after retirement (and there is medical evidence to support that the disablement or death resulted from a work injury), wage loss benefits will be payable as follows:

1. Workers, under 65 years of age, who do not stop work initially but later become disabled from an injury where there are no earnings or any assessable earnings will be provided benefits based on their earnings at the time the injury occurred (or at the time the workers left employment following exposure causing an occupational disease), subject to any increases afforded under Section 69 of the Act. If it is impossible to confirm such earnings, Section 70(4)(a) of the Act will apply. Failing that, the average weekly earnings will be based on the provincial minimum wage for a forty-hour work week for the first 24 months of demonstrated earnings loss.
2. For unpaid workers who stop work at the initial time of injury (immediately disabled) and have no earnings or any assessable earnings (e.g., government-sponsored volunteers or learners in work placement programs), the average weekly earnings will be based on the provincial minimum wage for a forty-hour work week for the first 24 months of demonstrated earnings loss.
3. In cases where the loss of earnings resulting from an injury extends beyond 24 consecutive months, compensation is to be calculated based on not less than two-thirds of the average weekly wage in accordance with the provisions of Section 70(5) of the Act.
4. Where there are no earnings at the time of death resulting from a work injury, benefits to the dependent spouse will be paid for a period not exceeding five years or longer if there are dependent children and will be based on the provisions of Section 81(1) of the Act.
5. Consumer Price Indexing of average weekly earnings as defined above will occur annually (Section 69(3)).
6. Costs may be charged to the Occupational Disease Reserve where disablement under Points 1 and 2 relate to a latent occupational disease, or where benefits are paid to a dependent spouse as directed under Point #4.