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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 590 14
7/7/2014
V. Marafioti - B. Davis - M. Ferrari

  • Board Directives and Guidelines (earnings basis)
  • Earnings basis (long-term) (commencement)

The worker suffered a low back injury on October 6, 2003, for which he was granted a 22% NEL award. He returned to permanently modified work after eight weeks on December 4, 2003. From January 2004 to April 2004, he performed full-time pre-injury duties, including overtime, but then had to eliminate the overtime and later reduce his hours due to his back condition. He underwent compensable surgery on March 3, 2005. The employer paid the worker his full wages from the time he returned to work in December 2003 until the date of the surgery in March 2005. The Board paid LOE benefits as a result of the surgery. The Board determined that the change from short-term earnings basis to long-term earnings basis should be May 25, 2005, which was the point at which the worker was in receipt of 12 continuous weeks of LOE benefits. The worker appealed, claiming that the recalculation should have been effective from January 2004. The recalculation was based on the worker's earnings during the year before the accident. The worker worked overtime but had only worked one week of overtime during the four weeks prior to the accident. Accordingly, the Board excluded overtime from the short-term earnings basis but included overtime in the long-term earnings basis. It was for this reason that the worker wanted the earlier recalculation date. Board Operational Policy Manual, Document No. 18-02-02, on determining short-term average earnings, provides that benefits are paid based on the short-term earnings basis for the first 12 weeks following an injury. If a worker received benefits for less than 12 weeks, the Board restarts LOE benefits using the short-term earnings basis. Document No. 18-02-03, on determining long-term average earnings, provides that LOE benefits are paid based on the worker's long-term earnings basis from the beginning of the 13th week of LOE benefits. The worker did not receive 12 consecutive weeks of LOE benefits at the time of the accident. He did not receive 12 consecutive weeks of LOE benefits until May 2005. The Board correctly recalculated the worker's benefits using the long-term earnings basis as of May 25, 2005. The Panel noted that there is an exception in Board policy, which provides for recalculation after 12 cumulative weeks of benefits in the case of a recurrence within 28 days of returning to work, but that provision was not applicable in this case. The appeal was dismissed.