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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 857 15
6/11/2015
J. Smith

  • Earnings basis (student)
  • Board Directives and Guidelines (earnings basis) (student)

The worker started working as an on-call general labourer for the accident employer in June 2010. He worked a few hours per week, while attending secondary school. He was injured in December 2010. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of short-term and long-term benefits. At the time of the accident, the worker had completed secondary school but had returned to school to upgrade his marks in order to pursue a post-secondary education. The Board correctly based short-term benefits on the worker's earnings prior to the accident. The Board recalculated for long-term benefits, based on earnings of a regular worker, which had the effect of reducing LOE benefits. Therefore, the Board continued the short-term rate for long-term benefits. There was no dispute that the worker was a student at the time of the accident, within the definition in the WSIA. Under O. Reg. 175/98 and Board policy, the first step in a recalculation of long-term benefits is the timing of the recalculation. If the student is unable to complete the education as a result of the injury, the recalculation is when the worker would have completed the education or when the worker has ended the education. In this case, the end of secondary school would not have been the end of the worker's education, as he intended to pursue post-secondary education. The Vice-Chair agreed with Decision No. 187/07 that nothing in the WSIA or Regulation precludes a recalculation of a student's earnings basis before the student's education ends. The Vice-Chair found that the recalculation should take place in this case in January 2011, when the worker stopped attending secondary school. The second step of the recalculation is the recalculation itself. There are two alternatives. The first approach is to determine the average earnings of a worker employed in a job in which the injured worker would likely be employed if the injury had not occurred. If that is not possible, the second approach is to consider the average industrial wage in the year in which the injury occurred, as well as the worker's level of education and aptitude and skills. In this case, the worker aspired to be a firefighter but those aspirations did not equate with a likelihood that the worker would have worked as a firefighter. The worker had not yet taken any steps directly related to entering that profession. The Vice-Chair found that it was not possible to determine the job the worker likely would have had but for the accident. Therefore, the worker's long-term benefits should be based on the average industrial wage for the year. The Vice-Chair found no evidence to support an upward adjustment from that amount in light of the worker's education, aptitude and skills. The appeal was allowed in part.