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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 1067 17
6/13/2017
Z. Onen

  • Loss of earnings {LOE} (review) (final)
  • Board Directives and Guidelines (LOE) (worker not earning at time of determination)

The worker suffered a right knee injury in May 2004, at age 33, for which the Board granted the worker an 8% NEL award. The worker could not return to manual labour. The Board identified a SEB as a general office clerk. The worker appealed a decision of the Appeals Resolution Officer basing LOE benefits at the final review on deemed full-time average earnings in the SEB. After completion of the LMR program, the worker was unable to find suitable work and eventually started to work part-time as a receptionist at a motel. He performed this job for two years, in 2008 and 2009, but has not worked since that time. In 2008, the Board based LOE benefits on his actual, part-time, entry level wages as a motel receptionist. However, in May 2010, at the final review, the Board based LOE benefits on deemed full-time earnings in the SEB. Board policy states that, where a worker completes LMR successfully and returns to work that is not in the identified SEB, the LOE calculation can be based on actual earnings so long as they are reasonably close to the earnings for the SEB. The National Occupation Classification (NOC) for general office workers includes receptionist but specifically excludes hotel receptionists because the hospitality industry clerical jobs require different qualifications. Thus, the worker, who was trained in office administration, did not return to work in the identified SEB. The Vice-Chair found that the worker was still at entry level. He had never worked in the identified SEB of office worker. He had two years of part-time experience as a motel receptionist. He did not have any of the training to be qualified as a receptionist in the hospitality industry. The Vice-Chair found that the worker remained at entry level for both office worker and motel receptionist. The worker's actual earnings were relatively close to entry level earnings for reception in the office clerk category. His deemed earnings should be based on actual earnings in the motel reception job. The Board found that the worker was under-employed. The Vice-Chair noted medical evidence of the worker's worsening condition, his difficulty in adapting to the new skills for general office work and the fact that he was not verbally adept, and concluded that the worker was not under-employed. At the time of the final LOE review, the worker was not working but the motel receptionist job was a reasonable representation of his earning capacity. The Vice-Chair concluded that the worker was entitled to LOE benefits at the final review based on part-time entry level earnings. The appeal was allowed.