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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 1876 17 R2
3/3/2020
G. Dee

  • Earnings basis (concurrent employment)
  • Earnings basis (deemed earnings)
  • Merits and justice
  • Reconsideration
  • Loss of earnings {LOE} (deemed earnings)
  • Board Directives and Guidelines (volunteer forces)

In accordance with Decision No. 1876/17R, the Vice-Chair re-heard the employer's appeal with regard to the worker's LOE benefit in March 2010 and at the final LOE review in June 2010.
The worker was a volunteer firefighter for a municipality and a full-time worker for a car parts manufacturer. He was injured in May 2004, while working as a volunteer firefighter. He could not return to work as a volunteer firefighter but returned to work for the car parts manufacturer. In May 2009, he was laid off from the car parts manufacturer. In March 2010, he started part-time office work for the municipality.
The wage loss that the worker experienced when he was laid off from the car parts manufacturer was not an injury-related wage loss; rather, it was due to economic circumstances. His employment was not clearly affected by this injury prior to the lay-off, and his employment circumstances following the lay-off were not significantly worse than those of his uninjured co-workers. Thus, the wage loss was due to the lay-off and, therefore, was not a loss contemplated by s. 43(1) of the WSIA or Board policy.
Section 43(2) requires that post-injury earnings to be attributed to the worker are earnings that the worker is able to earn in available employment. If the payment of LOE benefits for a loss of earnings that is not the result of the injury is to be avoided (as required by s. 43(1)), s. 43(2) must be held to include the worker's earnings from the car parts manufacturer despite the fact that the worker's job was not actually available to him and that worker was not actually able to earn the wages associated with that job. The wage loss experienced by the worker as a result of being permanently laid off is not an injury-related wage loss.
While it is appropriate to include the worker's earnings from the car parts manufacturer that is no longer available in his post-injury earnings, it is not appropriate to add the earnings from the part-time job with the municipality. He was only able to perform that part-time job because the car parts job was no longer actually available. On the evidence, it would not have been possible for the worker to maintain two jobs, one full-time with the hours and schedule associated with the car parts job and one part-time with the hours and schedules associated with the job with the municipality.
Therefore, the worker's post-injury earnings are not to be based on the total of earnings he might have achieved at both jobs but, rather, on the earnings of the higher of those two positions, which was the earnings associated with the car parts job.
Regarding pre-injury earnings, the worker eared about $46,000 per year from the car parts job. His actual earnings as a volunteer firefighter were about $9,000. However, under Board Operational Policy Manual, Document No. 12-04-02, on volunteer forces, earnings are based on the amount chosen by the employer, in this case, the maximum of $66,800.
The worker's post-injury earnings (determined to be those from the car parts manufacturer) were less than his pre-injury earnings (determined to be the maximum amount selected by the municipality). Accordingly, the worker was experiencing a wage loss for which he was entitled to LOE benefits, both in March 2010 and at the final LOE review in June 2010.
Had the municipality chosen a lower level of pre-injury earnings at the low end of what was permissible, the worker would not have been entitled to LOE benefits. However, this was not a reason to apply the merits and justice provisions. The merits and justice provisions are only intended to be relied upon in exceptional circumstances, and should not be applied where the clear intention the amended s. 78(3) and Board policy is to allow municipalities to select a level of coverage for volunteer firefighters that is different from the level of their actual pre-injury earnings.
The Vice-Chair confirmed the pre-injury earnings of $66,800, as was determined by the Board. However, post-injury earnings are to be based on actual post-injury earnings with the car parts manufacturer.
The appeal was allowed in part.