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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 935 19
9/5/2019
E. Kosmidis

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

The worker was 18 years old when he suffered a knee injury in January 2006, while working with a temporary placement agency as a dockworker. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits.
It was not disputed that the worker met the definition of a student under the WSIA.
Section 53(4) of the WSIA provides that the Board considers prescribed criteria in determining the average earnings of a student. Section 16 of O. Reg. 175/98 has provisions regarding the determination of average earnings of a student. Section 16(9) provides for recalculation of the average earnings of a student. Section 16(10) provides that the recalculation under s. 16(9) is determined with reference to the average earnings of a worker employed in a job in which the injured work would likely be employed if the injury had not occurred. Board Operational Policy Manual, Document No. 18-02-08, on determining average earnings in exceptional cases, adds that if it is not possible to determine the average earnings of a worker employed in a job in which the injured worker would likely be employed if the injury had not occurred, the recalculated average earnings are based on the average industrial wage, the worker's level of education and the worker's aptitudes and skills at the time of the injury.
The Board based LOE benefits on average earnings of a payroll clerk. The worker submitted that benefits should be based on average earnings of an accountant.
The Board policy contemplates two scenarios. The first scenario applies if the worker's career and educational plans are relatively clear at the time of the injury, in which case the pre-injury average earnings are based on an estimation of what the worker's average earnings would have been at the start of his career. The second scenario applies when no clear goal has been established, in which care the pre-injury average earnings are based on the average industrial wage, adjusted based on the worker's education aptitudes and skills at the time of the injury.
In this case, the worker had not completed high school at the time of the accident. His high school transcript did not show academic achievement that might be expected of a student aspiring to become an accountant. Psycho-vocational testing showed average aptitude for mathematics but below average ratings for vocabulary and reading comprehension. At the testing, the worker gave no indication of an interest in pursuing a career in accounting.
The Vice-Chair did not find that the worker had a clear career plan or that there was any certainty of achieving a goal of a career in accounting. The worker was not entitled to recalculation of benefits based on average earnings of an accountant. The appeal was dismissed.