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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 1336 15
S. Netten

  • Board Directives and Guidelines (LOE) (worker earning at time of determination)
  • Loss of earnings {LOE} (level of benefits) (hours of work)
  • Loss of earnings {LOE} (review) (final)

The worker suffered a shoulder injury in 2007. An SO was identified. The worker retrained and found work in the SO. The Board granted partial LOE benefits based on the difference between his pre-injury and post-injury earnings. The worker appealed, regarding the number of hours of work on which his post-injury earnings should be based.
Prior to the accident, the worker had been working 37.5 hours per week. After completion of the work transition plan, the case manager projected entry-level earnings of $15 per hour. However, the job found by the worker paid $13 per hour, for 40 hours per week. The Board based LOE benefits at the final review on those actual earnings of $13 per hour, 40 hours per week.
The worker submitted that his LOE benefits should be based on his actual earnings of $13 per hour but with post-injury hours deemed at 37.5, which he had been working prior to the accident. The worker relied on a stipulation in Board policy Manual, Document No. 19-03-03, on determined suitable employment or business and earnings, that a SEB should meet, as closely as possible, the number of hours worked prior to the injury. The Vice-Chair noted that this policy was revised in 2010, and that the current version states only that a worker working part-time pre-accident hours is not expected to significantly increase the number of hours; it does not address expectations for full-time workers.
The worker relied on two Tribunal decisions that used pre-accident hours in calculating post-injury earnings. However, the Vice-Chair distinguished those decisions in that they dealt with workers who had not yet found employment. That necessarily entails a best estimate of what a worker is able to earn, in which case it is consistent to apply an expectation of pre-accident hours. However, where the worker is working as in this case, Board policy unequivocally requires use of actual earnings to calculate ongoing partial LOE benefits. In selecting an SO, a worker might be expected to work pre-injury hours at a projected rate. However, if that worker in fact works more hours or for higher wages, this will mitigate the wage loss and reduce LOE benefits; if actual hours or wages are lower, and this is not due to under-motivation, LOE benefits will be higher than anticipated in the plan.
The Board correctly based LOE benefits on actual earnings, using actual wages and actual hours. The appeal was dismissed.