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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 2475 18
12/18/2018
J. Frenschkowski - M. Christie - M. Ferrari

  • Earnings basis (unemployment insurance benefits)
  • Earnings basis (recurrences) (FEL)
  • Board Directives and Guidelines (earnings basis) (unemployment insurance benefits)

The worker suffered neck and back injuries in February 1997, while working as a caretaker. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits.
The worker submitted that EI benefits received concurrently while working for the accident employer should be included in his earnings basis. Board Operational Policy Manual, Document No. 18-06-01, on calculating temporary total disability rate, stipulates that EI benefits are not earnings for the purpose of determining average earnings, with the exception of a federal work-sharing or job creation program. The Panel noted that, in this case, the worker was not participating in a work-sharing or job creation program. However, he was receiving EI benefits and earnings from working concurrently with the authorization and approval of his EI counsellor. Such circumstances are not specifically addressed in the Board policy but the Panel found that the worker's pre-accident situation was analogous to that of participation in a work-sharing or job creation program and that, accordingly, the EI benefits received by the worker concurrently with his earnings from employment should be treated as earnings for the purpose of calculating is pre-injury earnings basis.
Prior to working for the accident employer, the worker had worked as a credit and collections manager. After working for the accident employer, the worker again found work as a credit and collections manager. The worker suffered a recurrence in April 2010, while working as a credit and collections manager. The worker submitted that his R2 FEL award should be based on earnings on his higher earnings at the time he laid off in 2010 rather that his low earnings while working as a caretaker at the time of the original accident.
The Panel agreed with Decision No. 701/04R and that the straightforward interpretation of s. 43 of the pre-1997 Act requires that net average earnings before the accident be interpreted as earnings at the time of the original accident or injury. There was no basis for use of earnings at the time of a recurrence. The Panel noted that s. 40(7) specifically permits use of a higher wage rate for the purpose of temporary benefits where a worker returns to work and later becomes entitled to benefits again. There is no such language in s. 43 regarding calculation of FEL benefits.
The appeal was allowed in part.