Determination of annual earned income after industrial injury

Case no. 19/2015
Judgment delivered on 25 November 2015

FOA acting for A
vs.
The National Social Appeals Board

In 2004, A, a social and health care assistant, was injured in a traffic accident while working. For a number of years up to the time of her accident, A had been working reduced hours. She had three children who did not have special needs and who were aged 10, 10 and 13 at the time.

The case concerned the issue of whether, in the assessment of loss of working capacity compensation, A's annual earned income should be determined in accordance with the general rule in the Danish Consolidated Workers' Compensation Act, according to which the annual earned income is the total earned income in the year preceding the date of the industrial injury, or whether special circumstances justified determining the annual earned income according to an estimate.

The National Board of Industrial Injuries and the National Social Appeals Board had decided that A's annual earned income as a part-time employee should be used for assessing her compensation. A brought the National Social Appeals Board's decision before the courts, claiming that her annual earned income should be based on full-time employment at the time of her injury.

The Supreme Court found that it was not relevant to this case that A essentially worked full-time before she had children or that she had actual and feasible plans to start working full time at the time of her injury.

Against this background, the Supreme Court found that it could not be regarded as having been sufficiently demonstrated that A's employment on reduced hours was temporary. Accordingly, the annual earned income had been rightly assessed.

The High Court had reached the same conclusion.