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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 1610 14
9/16/2014
J. Lang - M. Trudeau - R. Briggs

  • Loss of earnings {LOE} (deemed earnings)
  • Board Directives and Guidelines (LOE) (worker earning at time of determination) (under-employment)

A labourer suffered a low back injury in December 2007, for which he was granted a 7% NEL award. The Board identified as SEB as a customer service clerk. However, the worker found seasonal maintenance work at a vacation lodge, starting at $12 per hour, later increased to $14 per hour. The Board based the worker's LOE benefits on his actual earnings, but with ability to work full-time on a year-round basis. The worker appealed. The worker was not working in the identified SEB. He chose to seek work only in his local community, which effectively limited him to seasonal work. This was a personal choice. His loss of income was primarily the result of this personal choice. It was not unreasonable to expect the worker to commute to the nearest city in order to find year-round employment. The commute would have been about one hour. The Panel noted that students were bused each day from the town to the city. Further, the worker's permanent impairment did not limit his ability to manage the commute. The worker's decision to seek seasonal employment in the local community rendered the worker under-employed within the meaning of Board policy. The Board appropriately based LOE benefits on actual earnings with ability to work full-time on a year-round basis. The appeal was dismissed.