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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 201 14
2/7/2014
S. Netten

  • Earnings basis (long-term)
  • Board Directives and Guidelines (earnings basis) (permanent employment) (break in employment pattern)

A truck driver started working for the employer on May 15, 2010. He suffered a compensable injury on August 19, 2010. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of long-term benefits. The recalculation period in this case was from May 15. That period consisted of 96 days of employment. The Board factored out three days in relation to the death of the worker's father-in-law, leaving a recalculation based on 93 days of employment. The worker worked 52 days and was off work for 44 days. Three days of absence had already been factored out. The worker submitted that the remaining 41 days should also be factored out because the worker was caring for his dying father. The Vice-Chair examined the worker's work pattern and found that he only adjusted his routines and decreased his mileage after July 18, 2010. Thus, it was appropriate to consider his employment pattern up to that date as reflective of his usual routine. In the period up to July 18, the worker worked 42 days and took off 16 days. The Vice-Chair noted that this is similar to the norm of a full-time worker in regular weekday employment. From July 19 until the day of the accident, the worker worked 12 days and took off 20 days. Had he been following his usual pattern, he would have worked about 23 days and would have taken off about nine days. Thus, the worker was absent for 11 days more that would have been the norm during this period. These 11 days were due to the condition of the worker's father and were not part of the employment pattern and, accordingly, should be factored out from the recalculation period. The Vice-Chair concluded that the recalculation should be based on 82 days of work rather than the 93 days that had been determined by the Board. The appeal was allowed in part.