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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 26 16
1/18/2016
S. Netten

  • Earnings basis (concurrent employment)
  • Earnings basis (deemed earnings)
  • Firefighter (volunteer)
  • Merits and justice

The worker was a volunteer fire chief and part-time school bus driver. He suffered a knee injury in October 2009, while performing his duties as the fire chief. He returned to work as the fire chief in October 2012, but was unable to return to work as a school bus driver. The worker appealed a decision of the Appeals Resolution Officer denying calculation of the worker's earnings basis after October 2012, using his concurrent earnings. Section 53(5) of the WSIA provides that earnings of an emergency worker are the earnings in actual employment. If the worker has no such earnings, the Board fixes the amount of earnings. Board Operational Policy Manual, Document No. 12-04-02, on volunteer forces, sets the amount of earnings as the amount requested by the deemed employer, and states that other earnings are not considered in the calculation. In this case, the deemed employer selected earnings of $64,000. That was the amount used as the earnings basis for calculating LOE benefits until October 2012. After October 2012, the worker no longer had a loss of earnings related to his volunteer fire chief position. Applying Document No. 12-04-02, the worker was not entitled to LOE benefits after October 2012, since his deemed pre-accident earnings were equal to his deemed post-accident earnings. However, the Vice-Chair agreed with Decision No. 1139/02, that this was an appropriate case to apply the merits and justice. The policy was not intended to apply so as to deny entitlement to a volunteer emergency worker whose earning capacity as a fire chief was not impaired but whose earning capacity in other employment was impaired, but that was the unintended result of the application of the policy in the unusual circumstances of the appeal. The worker was entitled to calculation of his earnings basis after October 2012, using his pre-accident average earnings as a part-time school bus driver. The appeal was allowed.