- Earnings basis (overtime)
- Loss of earnings {LOE} (wage loss) (overtime)
The ARO found that the worker's partial loss of earning benefits were appropriately adjusted following a material change in circumstances. The issue under appeal concerned the quantum of LOE benefits from June 28, 2021, specifically, whether the WSIB correctly included the worker's overtime in the calculation of her post-injury net average earnings.
The Vice-Chair allowed the appeal.Subsection 44(1) of the WSIA indicates LOE is reviewable "every year or if a material change in circumstances occurs..." In the case of a material change, LOE benefits are recalculated "each time the post-injury earnings change" if there is a significant difference, increase or decrease, compared to the prior post-injury earnings used to calculate LOE (i.e., 10% or greater difference as between the changed earnings and the post-injury NAE last used). That is, the recalculation would take place effective the dates of the material change of circumstances, which may not necessarily coincide with the annual review dates.The Vice-Chair found that the worker's partial LOE benefits effective June 28, 2021, should have been calculated using the post-injury net average earnings as of the date she was no longer performing overtime work, in or around March 2021. This was in contrast to the WSIB's approach of considering the earnings in the period leading up to June 28, 2021 and pro-rating them for the year, which had the effect of pro-rating the increased overtime earnings from January to March 2021, even though the worker was not earning overtime by June 28, 2021. In keeping with OPM Document No. 18-03-02, her completion of overtime work would have marked the last material change in circumstances prior to the annual review that took place effective June 28, 2021, and there was no material change in circumstances effective June 28, 2021. The Vice-Chair confirmed the WSIB's subtraction of the worker's COVID-19 pandemic pay from her post-injury NAE, for the purposes of calculating her LOE effective June 28, 2021. The Vice-Chair accepted the worker's testimony that the period between January 2021 and March 2021 represented exceptional circumstances associated with the COVID-19 pandemic.The Vice-Chair noted that this partial LOE order would remain in effect until the next annual review, which took place on June 28, 2022, noting that the available evidence did not support the presence of any other material change in circumstances to the worker's earnings prior to that date. The worker had complied with the WSIB's request to demonstrate that she had returned to her normal pay cycle, which consisted of 37.5 hours worked per week with no overtime earnings.