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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 1015 16
6/15/2016
S. Darvish - B. Wheeler - K. Hoskin

  • Earnings basis (student)
  • Board Directives and Guidelines (earnings basis) (student)
  • Worker (student)
  • Board Directives and Guidelines (work transition plan) (length of program)
  • Work transition plan (self-directed program)

The worker suffered a shoulder injury in August 2006, while working as a clerk in a grocery store. After the accident, he attended college, as planned, from September 2006 to May 2008, and obtained a diploma as a gas technician. He worked as a gas fitter until October 2009, when he underwent compensable shoulder surgery. He underwent further compensable shoulder surgery in February 2011. The Board paid LOE benefits until March 2012, when it found that the worker could restore his pre-injury earnings in a direct-entry SO without training.
The worker could not return to work as a gas fitter. In 2012, he enrolled in a four-year nursing program at university.
The worker appealed a decision of the Appeals Resolution Officer finding that the worker was not a student at the time of the accident and denying reimbursement for the nursing program.
Section 2(1) of the WSIA defines a student as a person who is pursuing formal education as a full-time or part-time student and is employed by an employer for the purposes of the employer's industry, although not as a learner or apprentice. In this case, the worker completed high school in 2005, and had been working for about one year in order to earn money to pay for college. By the time of the accident, he had already applied for, been accepted into and registered for, the gas technician program. The worker attended and completed the program.
The Panel found that the worker was a student within the definition in the WSIA. Accordingly, the worker's earnings basis should be calculated taking into account that he was a student at the time of the accident and his earnings should reflect the average earnings of a gas fitter.
If the Board had determined at the outset that the worker was a student, his pre-injury earnings profile would have been higher and Board likely would have sponsored the worker in a WT program after the 2011 surgery. However, he was left on his own by the Board. He made reasonable efforts at self-directed work transition programs.
Board policy on work transition plans provides that a college program generally would not exceed two years in length and is subject to a total three-year plan length if provided in combination with other services.
The Panel found that work as a gas fitter was no longer suitable for the worker and that he required upgrading or retraining to find a suitable occupation, but a nursing program was not necessary to achieve his pre-injury earnings profile. A community college program of shorter duration could have achieved that result. However, the worker did not have the benefit of assistance from the Board. The nursing program was a reasonable self-directed work transition program.
While Board policy provides that college programs should only be for two years, the policy has been interpreted with flexibility, particularly considering other references in the policy to three years. In the circumstances, the Panel concluded that the worker was entitled to reimbursement for three years of the four-year nursing program.
The appeal was allowed in part.