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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 455 14
5/16/2014
J. Frenschkowski

  • Earnings basis (dependent contractor)

The worker fell from a ladder on the first day of performing a roofing job. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits. The Board paid benefits originally based on earnings of $20 per hour but based long-term benefits on earnings of $15 per hour for eight months over a 12-month period. The worker had been operating his own home renovation business for many years. The Board correctly determined that the worker was a dependent contractor. Because the worker was a dependent contractor and not a worker in non-permanent employment, Board Operational Policy Manual, Document No. 18-02-04, did not apply. Rather, the applicable policy was Document No. 18-02-08. Document No. 18-02-08 requires the decision-maker to use objectively verifiable and verified earnings information in the form of net business income reported to the Canada Revenue Agency or reported in an audited financial statement. If a worker does not provide earnings information, a Board adjudicative advice document allows payment at a temporary rate of $250 per week for up to six weeks and then suspension of benefits. The worker did not provide earnings information in this case. The Board could have reduced and suspended benefits, but it paid benefits at the hourly rate of $20 per hour until it adjusted benefits to $15 per hour. The $15 was based on the hourly wage of other roofer helpers. The Vice-Chair confirmed the long-term rate of $15 per hour for eight months, distributed over a full year, as determined by the Board.