What the panel treated as outcome-determinative, and which side it favoured.
Applicant's credible testimony that a negotiated salary increase was reasonably anticipated at the time of injury.
Favours Applicant prevailed
Supported the use of earning capacity rather than actual wages to calculate average weekly wage.
From the decision · page 5First, and based on applicant's testimony which the WCJ found to be credible, it was
reasonable to conclude that at the time of injury in January 2022, applicant could reasonably
anticipate a negotiated salary increase (in addition to what defendant concedes would be a certain
step salary increase), either at the time of the next contract or retroactive to the start of the new
contract. (Report, p. 4.) Certainly, there is no dispute that when contract negotiations were
concluded in October 2022, the pay increase was indeed applied retroactively to June 2022. (Id.,
at p. 5.) On the other hand, however, defendant produced evidence that prior negotiated salary
increases since applicant's employment began in 2015 averaged 2.76%, which was less than half
of applicant's post-injury negotiated contract increase, and included two years with no negotiated
salary increase. (Minutes of Hearing and Summary of Evidence, April 9, 2024, p. 6.) Therefore,
defendant had a colorable argument that it could not reasonably anticipate what the increase would
be for the 2022-2023 school year, and certainly not that the increase would be 7% which was more
than twice the 2.76% average.
Defendant's evidence that prior negotiated salary increases averaged 2.76%, less than the actual 7% increase.
Favours Defendant prevailed
Supported defendant's argument that the exact amount of the increase was not reasonably anticipated.
From the decision · page 5First, and based on applicant's testimony which the WCJ found to be credible, it was
reasonable to conclude that at the time of injury in January 2022, applicant could reasonably
anticipate a negotiated salary increase (in addition to what defendant concedes would be a certain
step salary increase), either at the time of the next contract or retroactive to the start of the new
contract. (Report, p. 4.) Certainly, there is no dispute that when contract negotiations were
concluded in October 2022, the pay increase was indeed applied retroactively to June 2022. (Id.,
at p. 5.) On the other hand, however, defendant produced evidence that prior negotiated salary
increases since applicant's employment began in 2015 averaged 2.76%, which was less than half
of applicant's post-injury negotiated contract increase, and included two years with no negotiated
salary increase. (Minutes of Hearing and Summary of Evidence, April 9, 2024, p. 6.) Therefore,
defendant had a colorable argument that it could not reasonably anticipate what the increase would
be for the 2022-2023 school year, and certainly not that the increase would be 7% which was more
than twice the 2.76% average.
Lack of substantial evidence to attribute delay in medical treatment to defendant.
Favours Defendant prevailed
Led to rescission of the penalty for unreasonable delay in payment of temporary disability.
From the decision · page 5We find no substantial evidence in the record to support attribution of the delay in
applicant's medical treatment to defendant. Defendant claims the requested medical treatment was
authorized and produced utilization review certifications (UR certifications) dated March 15 and
18, 2022 for a cam boot, physical therapy and an MRI; however, defendant also failed to produce
proofs of service to the UR certifications. (Report, p. 3; see Def. Exhs. C, D.) Applicant credibly
testified that treatment was neither approved nor disapproved for approximately eight (8) months,
which might support attribution of the delay in treatment to defendant; however, there is nothing
in the record to explain why neither the applicant (and/or her attorney) nor the treating physician