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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 685 13
5/2/2013
S. Martel

  • Future economic loss {FEL} (deemed earnings) (self-employment)

The worker suffered a low back injury in 1994. The worker retrained and became a self-employed insurance broker. In Decision No. 1858/00, the Tribunal found that the worker's D1 FEL award should be based on half of projected post-accident earnings but that it was appropriate to use all of the projected post-accident earnings at R1. The worker now appealed a decision of the Appeals Resolution Officer granting only a FEL sustainability award at R2. The worker had gross earnings of about $40,000, and net earnings of about $9,000. The worker submitted that his R2 FEL award should be based on his actual net earnings, relying on Board policy to base benefits at the final review on actual wages for workers who have returned to work in a SEB-identified job. However, the Vice-Chair agreed with the majority of Tribunal decisions that the Board policy was not intended to apply to self-employed workers, that a self-employed worker's net earnings do not accurately reflect actual wages and that it is appropriate to deem earnings within the SEB. This is what the Tribunal did in Decision No. 1858/00. The same reasoning should apply at R2. The average wage for a broker was about $41,000, which was above the worker's escalated pre-accident wages. Thus, the sustainability award granted by the Board was appropriate. The appeal was dismissed.