What the panel treated as outcome-determinative, and which side it favoured.
Applicant testified he was hired to be a full-time employee working 40 hours per week but also testified that some days no work was available.
Favours Applicant prevailed
This testimony created uncertainty about applicant's full-time status, requiring further record development.
From the decision · page 7Applicant testified that he was hired to be a full-time employee, that he was hired to work
40 hours per week from 7:30 to 3:30. (MOH/SOE, at p. 3.) However, applicant also testified that
there were certain days when he called in for work where no work was available. (Id.) Applicant
contends that he was "dispatched by the union not a temp agency and there are no documents
supporting their claim that I was part-time or on call." Applicant is correct that there are no
documents admitted into the evidence which conclusively show that he was part-time. However,
there are also no documents admitted into the evidence which conclusively show that applicant
was full-time.
No conclusive documentary evidence was admitted to prove applicant's full-time or part-time status.
Favours neutral
Lack of documentary evidence prevented a conclusive finding on average weekly earnings calculation.
From the decision · page 7Applicant testified that he was hired to be a full-time employee, that he was hired to work
40 hours per week from 7:30 to 3:30. (MOH/SOE, at p. 3.) However, applicant also testified that
there were certain days when he called in for work where no work was available. (Id.) Applicant
contends that he was "dispatched by the union not a temp agency and there are no documents
supporting their claim that I was part-time or on call." Applicant is correct that there are no
documents admitted into the evidence which conclusively show that he was part-time. However,
there are also no documents admitted into the evidence which conclusively show that applicant
was full-time.
Wage statements and check activity showed irregular hours and weeks with zero hours worked.
Favours neutral
This evidence indicated irregular employment, complicating the calculation of average weekly earnings.
From the decision · page 8A wage statement worksheet (Exhibit 4 and Exhibit B) and check activity (Exhibit C) show
a broad range of hours worked in different timeframes, including several weeks with zero hours
worked. There is a Notice of Lien Claim stating that applicant began receiving State Disability
Insurance benefits (also known as Unemployment Compensation Disability (UCO) benefits) on
March 13, 2023, for a January 31, 2023, date of injury (Exhibit D), however there is no evidence
in the record regarding unemployment benefits, or earnings from any other employment before
applicant started working for defendant.
Evidence of post-injury earnings through March 4, 2023, was not considered by the WCJ.
Favours Applicant prevailed
This omission warranted returning the matter for further proceedings to fully develop the record.
From the decision · page 8There is evidence of post-injury earnings through March 4, 2023 (Exhibit C, pp. 7-9),
which it does not appear that the WCJ considered. We also note that the fact that applicant called
in each day to find out whether and where he would be working is not itself evidence that he was
less than a full-time employee.