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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 2455 16
12/19/2016
J. Noble

  • Earnings basis (dependent contractor)
  • Board Directives and Guidelines (earnings basis) (dependent contractor)

The worker suffered fractured ribs in September 2011. The worker appealed a decision of the Appeals Resolution Officer denying ongoing entitlement for the ribs, denying entitlement for the low back, neck and shoulder, and regarding the earnings basis for calculation of benefits. The worker was a dependent contractor. He had only been working for a number of weeks. He had received four cheques from the employer, with no deductions. The employer did not issue a T4 statement to the worker. Board Operational Policy Manual, Document No. 18-02-08, on determining average earnings in exceptional cases, provides for a calculation period of 12 months prior to the accident, or lesser period. The period is shortened by a break in the employment pattern. Business income during the calculation period is used for earnings information, based on income reported to Canada Revenue Agency or an audited financial statement. A Board adjudicative advice document, on determining the earnings basis for dependent contractors, provides that, for dependent contractors who have been in operation for less than one year and an income and expense statement is not available, the decision maker may set the average earnings using one-third of the maximum annual insurable earnings ceiling, on a temporary basis. In this case, the worker was a dependent contractor. There was a break in the employment pattern when the worker started working for the employer. The worker did not report his income from the employer to CRA and he did not have audited financial statements. In these circumstances, the Board correctly applied its adjudicative advice document and based average earnings on one-third of the maximum annual insurable earnings ceiling at the time. The worker recovered from the rib injury. He also did not have entitlement for other areas of the body claimed. The appeal was dismissed.