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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 1096 18
4/30/2019
K. Jepson

  • Earnings basis (student)
  • Board Directives and Guidelines (earnings basis) (student)

A 23-year-old worker suffered a hand injury in October 2014, for which the Board granted the worker a 28% NEL award. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits.
Prior to the accident, the worker had applied simultaneously for three college programs: the paramedic program, the massage therapy program and the pre-health sciences program. He was admitted to the pre-health sciences program. He enrolled in that program, which was scheduled to begin in January 2015. He intended to complete that program and then re-apply to the paramedic program. After the accident, he entered and completed the pre-health sciences program. He did not re-apply to the paramedic program due to his hand injury.
The Board based benefits on the worker's pre-accident earnings. The worker submitted that he came within the definition of a student and that his benefits should be based on earnings of a paramedic.
It was not disputed that the worker met the definition of a student under the WSIA. Section 53(4) provides that the Board considers prescribed criteria in determining the average earnings of a student. The prescribed criteria are found in s. 16 of O. Reg. 175/98. Section 16(9) provides that the average earnings of a worker who is a student shall be recalculated, if the worker is unable to his or her complete education as a result of the injury, when the worker would have completed his or her education if the accident had not occurred. Section 16(10) provides that average earnings are recalculated with reference to the average earnings of a worker employed in a job in which the injured worker would likely have been employed if the injury had not occurred. Section 16(11) has further provisions about use of average industrial wage.
For regular workers, the calculation for short-term benefits and the recalculation for long-term benefits are based on pre-accident earnings. For students, however, decision-makers must look at a hypothetical post-injury point in time in order to determine what will in effect become the worker's deemed pre-injury earnings for the purpose of calculating the student worker's LOE benefits.
The wording of s. 16(9) is mandatory, requiring recalculation of the average earnings of a student. That recalculation will be made as of the point in time at which the worker completes his or her education or would have completed his or her education. Board policy provides a reasonable interpretation of s. 16(9) and (10), determining that the job the worker would likely have obtained if not for the injury is the primary guideline and use of the industrial average wage is a secondary guideline to be used only if necessary.
The worker intended to become a paramedic. His second choice was to pursue massage therapy. The Vice-Chair obtained additional information and statistics from the college to which the worker had applied. Only about 17% of applicants were admitted into the paramedic program. That percentage increased for students who had completed the pre-health sciences program, but still was only 30%. For the massage program, 85% of applicants were admitted, and that percentage increased to 100% for those who had completed the pre-health sciences program. Considering the worker's marks from high school, as well as completion of other pre-requisites, the Vice-Chair found that the worker would only have been accepted to the massage therapy program and that he would have successfully completed that program. The Vice-Chair then considered employment statistics and concluded that the worker would likely have obtained employment as a massage therapist, with earnings of $25 per hour.
The Vice-Chair concluded that the worker was entitled to recalculation of benefits with an earnings basis of $25 per hour. Under s. 16(9), the recalculation should take place when the worker would have completed his education if the injury had not occurred. The worker would have begun the program in fall of 2015 and would have completed the three-year program is the spring of 2018. He was entitled to the recalculation of his average earnings at that time.
The appeal was allowed in part.