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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 2312 14
12/17/2014
B. Kalvin

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

The worker suffered a knee injury, for which he was granted a 12% NEL award. The Board identified a suitable occupation for the worker as a human resources professional. At the final LOE review, the Board based LOE benefits on deemed full-time mid-level wages. The worker appealed. The Board sponsored the worker in a three-year community college program to train as a human resources generalist. During the second year of the program, students were advised that the certification qualifications for the field had changed, so that a university degree was required and a college diploma would no longer be sufficient. However, the Board did not authorize amendment of his work transition plan. After completing the college program, the worker was unable to find a job as a human resources generalist, despite diligence and effort by both the worker and an employment placement services professional. By the time of the final LOE review, the worker had found part-time employment teaching in the human resources program at a community college. Board policy provides that, at the final LOE review, the LOE benefits of a worker who is employed in the SO-identified job are based on the worker's actual earnings, unless the worker is voluntarily under-employed. The Vice-Chair found that teaching in a human resources program at a community college was an SO-identified job. It was in the field for which the worker trained and he was only able to secure that job because of the training he received in the work transition program. The worker may have been under-employed but he was certainly not voluntarily under-employed. The worker was entitled to LOE benefits at the final review based on his actual earnings. The appeal was allowed.