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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 2276 14
5/26/2016
S. Netten

  • Board Directives and Guidelines (earnings basis) (overtime)
  • Earnings basis (overtime)
  • Merits and justice
  • Earnings basis (long-term)
  • Earnings basis (short-term)

The worker suffered a compensable injury in August 2011. The employer provided modified work at no wage loss, but the worker was unable to work overtime in the modified job. The worker appealed a decision of the Appeals Resolution Officer denying inclusion of overtime in the worker's pre-injury average earnings for calculating both the short-term earnings basis and long-term earnings basis. Working overtime was voluntary. The worker worked overtime during three of the four weeks prior to the accident. The Vice-Chair noted that during the 30 weeks prior to the accident, the worker had worked overtime in approximately half of those weeks. Thus, the failure to work overtime during one of the four weeks prior to the accident was not an aberration. Board policy on overtime distinguishes between the short-term earnings basis and the long-term earnings basis. Operational Policy Document No. 18-02-02, provides for inclusion of voluntary overtime in the short-term earnings basis only if the worker has worked overtime in each of the four weeks prior to the accident. The worker did not meet the requirements of Board policy for inclusion of overtime in his short-term earnings basis and there were no exceptional circumstances warranting a deviation from the policy. Document No. 18-02-03 allows the Board to determine a long-term earnings basis if it would be unfair to continue paying LOE benefits on the short-term earnings basis, including circumstances where the discrepancy is based on the absence of irregular overtime from the short-term basis. Although no benefits were actually paid in the short-term, the worker was entitled to recalculation of a long-term earnings basis, considering the merits and justice of the case. The appeal was allowed in part.