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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 1223 17
11/17/2017
M. McGarvey

  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Board Directives and Guidelines (LOE) (worker earning at time of determination)
  • Loss of earnings {LOE} (review) (final)

The worker appealed a decision of the Appeals Resolution Officer regarding the amount of his LOE benefits at the final review in June 2010 and after termination of his employment in December 2010.
The worker was not entitled to review of LOE benefits after termination of his employment in December 2010, as the he did not come within any of the exceptions in s. 44(2.1) allowing review after the final lock-in date.
At the time of the final review in June 2010, the worker had recently completed his WT program and had obtained employment on a three-month contract at $30 per hour. The Board found that the worker was entitled to a zero LOE benefit based on the worker's actual earnings of $30 per hour.
The Vice-Chair noted that the worker was not working in an SO-identified job. This was a fixed-term opportunity arranged by a friend, with only a potential to continue. The earnings from that job did not reflect the amount the worker could earn from sustainable employment.
Board policy allows for use of actual earnings from a non-SO-identified job if the earnings represent the same or similar future potential earnings as SO-identified jobs. That was not the situation in this case.
The Vice-Chair concluded that the worker was entitled to LOE benefits at the final review based on deemed earnings in the SO of $15 per hour.
The appeal was allowed in part.