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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 925 17
4/20/2017
G. McCaffrey

  • Earnings basis (long-term)
  • Board Directives and Guidelines (earnings basis) (unemployment insurance benefits)
  • Board Directives and Guidelines (earnings basis) (non-permanent or irregular employment) (non-earning period)

A seasonally employed worker suffered a low back injury in September 2005. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of long-term benefits. It was agreed that the recalculation period should be from January 2004 until the date of the accident in September 2005. That was a period of 610 days. The worker submitted that the recalculation period should be reduced to 491 days, based on exclusion of three periods of time. Board Operational Policy Manual, Document No. 18-02-04, on determining the long-term average earnings for workers in non-permanent employment, provides that periods of unemployment are part of the employment pattern for workers in non-permanent employment and are, therefore, included in the recalculation. However, the policy lists certain non-earning periods that are excluded from the recalculation. During the first period of time, from December 2004 to February 2015, the worker was off work and unpaid due to a non-compensable injury. The ARO agreed that this period should be excluded from the recalculation. However, it appears that the ARO excluded only working days, rather than calendar days. The Vice-Chair found that the Board generally uses calendar days, and should have used calendar days in this case. Thus, 63 calendar days should be excluded, rather than the 40 days allowed by the ARO. The second group of days related to two 14-day waiting periods prior to the start of EI benefits. The Vice-Chair noted that EI benefits are included as earnings under the Board policy. The policy does not list waiting periods in the list of exclusions. The Vice-Chair found that the intent of the policy is not to exclude EI waiting periods. Therefore, the two waiting periods should not be excluded from the recalculation. The third group of days related to two weeks of unpaid vacation. The Vice-Chair noted that the Board policy does not list unpaid vacation in the exclusions. Generally, the policy provides that non-earning periods are included in the recalculation. The Vice-Chair concluded that the unpaid vacation should not be excluded from the recalculation period. The result was that the recalculation period should be reduced from 610 days to 547 days. The appeal was allowed in part.