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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 207 16
3/18/2016
J. Noble

  • Transportation industry (truck driver)
  • Worker (test)
  • Earnings basis (dependent contractor)

A truck driver was injured in a motor vehicle accident in February 2008. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits. The Board found that the worker was a dependent contractor, and based LOE benefits on earnings of $5,600. Pursuant to Board Operational Policy Manual, Document No. 18-02-08, on determining average earnings in exceptional cases, a dependent contractor is a person who performs work for another person for compensation on such terms that the dependent contractor is in a position of economic dependence in the way that more closely resembles the relationship of an employee than that of an independent contractor. The period of calculation of average earnings of a dependent contractor is the 12 months prior to the accident or a lesser period if there has been a break in the employment pattern. For earnings information, the Board uses net business income based on income reported to the Canada Revenue Agency or an audited financial statement of earnings prepared by a chartered accountant. The worker submitted that he was properly characterized as a permanent worker rather than a dependent contractor. The Vice-Chair found that the Board correctly characterized the worker as a dependent contractor. He had to have insurance for all provinces and had to have a corporation number. He was paid by the mile. No deductions were made at source from his pay. In his 2007 tax return, the worker claimed his income as being from self-employment. The worker's 2007 tax return had income consisting of employment insurance benefits in the amount of $6,300 and self-employment in the amount of $5,600. The worker started working for the employer in August 2007. This was a break in the employment pattern. The Board correctly calculated the worker's earnings from August 2007 to February 2008. Thus, from the 2007 tax return, the Board excluded the employment insurance benefits and considered only the income from self-employment of $5,600 related to the period from August 2007 to December 2007. With respect to 2008, the Board made several requests for the worker's 2008 tax return but the worker did not provide it to the Board. Since the 2008 earnings could not be confirmed, they could not be incorporated into the worker's earnings basis. The Vice-Chair confirmed the Board's calculation of the worker's LOE benefits based on earnings of $5,600. The appeal was dismissed.