- Earnings basis (concurrent employment)
The worker sought an increase in the long-term rate calculation used to determine her level of entitlement to Loss of Earnings (LOE) benefits following June 20, 2022. The worker argued that she was concurrently employed throughout most of the recalculation period from January 1, 2021 to March 20, 2022 and that the reason for her discontinuation of her second PSW position in January 2022 was related to her compensable injury.
The Vice-Chair allowed the appeal. The worker's earnings during the recalculation period were to include the worker's earnings from both employers she worked for between January 1, 2021 and March 20, 2022.The WSIB's policy on Concurrent Employment as contained in OPM Document No. 18-02-05 is a policy that is used to determine the earnings of a worker who is concurrently employed "at the time of injury". It requires that for a worker to be considered concurrently employed at the time of injury there must be evidence of more than one continuing contract of employment during the four-week period prior to the injury and to have received earnings from all concurrent employment during that time. The worker became entitled to further LOE benefits because she re-entered an LMR program. While the determination of pre-injury earnings for the purpose of determining LOE entitlement usually occurs at the time of accident, or in the case of recurrences while employed - at the time of the recurrence, the determination required under section 53(6) is the determination of the worker's earnings at the time they were most recently employed. In interpreting this, the Vice-Chair noted that the overriding principle to be applied to the determination of pre-injury earnings is one of fairness. While a desire to achieve fairness cannot override directly applicable legislation and policy, fairness guides the interpretation of those provisions (see Decision No. 3124/00). During the recalculation period used to determine the worker's earnings when she was most recently employed from January 1, 2021 until March 20, 2022, the worker held two jobs for all but the last 6 or 7 weeks of that period of time. The Vice-Chair accepted as reasonable the explanation provided for the worker's discontinuation of her employment with the second employer as of January 31, 2022, as one that was related to her injury. The worker had quit her job at that time to be able to enter the Work Transition program offered to her and the WSIB had informed her she could not enter that program if she remained employed, and she wished to leave her job in a manner that did not cause undue disruption to her employer and their client.