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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 1809 16
10/3/2016
E. Smith

  • Earnings basis (short or casual employment)
  • Earnings basis (long-term)
  • Board Directives and Guidelines (earnings basis) (permanent employment)

The worker was injured on his third day of employment as a steelman. The Board based long-term benefits on the worker being in non-permanent employment. The worker appealed. Although the accident occurred on the third day of employment, the Vice-Chair was satisfied that the worker was in permanent employment. Board policy provides that workers in permanent employment may have earnings that vary due to irregular hours or method of payment, and that the work may involve occasional short-term lay-offs or non-earning periods such as shortages of work and plant shut-downs. In such cases, it may be necessary to calculate long-term benefits over a 12-month period. The worker worked for three days, eight hours per day, at $32 per hour. The worker submitted that, in determining a long-term rate, the period prior to the three days should be excluded because of a break in the employment pattern and that, accordingly, the recalculation should be based on a 40-hour week. The Vice-Chair noted that workers at the low end of the range in the trade, such as the worker in this case, typically worked only 27.7 hours per week. The Vice-Chair found that continuing to base benefits on 40 hours of work per week was unfair. The Board policy states that the period of one year prior to the accident is to be considered but also states that certain periods are to be excluded such as when there is a relevant break in employment. If those were the only factors that could be considered, the result of the recalculation would be to include only the three days of employment. However, the Vice-Chair noted that the policy provides that the one-year time period is to be considered. It does not state that this is the only relevant consideration. The Vice-Chair found that evidence about employment patterns may also be considered. The Vice-Chair also noted that s. 53(3) of the WSIA is explicit that, in recalculating average earnings, the Board shall take into account such information as it considers appropriate. The Board policy reference to recalculation based on fairness and employment patterns is broad enough to permit consideration of evidence of employment patterns of comparable workers when that consideration is necessary to achieve a just result. The worker was entitled to long-term benefits based on earnings of $32 per hour for 27.7 hours per week. The appeal was allowed in part.