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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 1692 16
2/8/2017
S. Netten

  • Board Directives and Guidelines (earnings basis) (recalculation)
  • Earnings basis (long-term)
  • Board Directives and Guidelines (earnings basis) (permanent employment) (non-earning period)

The worker suffered a compensable injury in July 2008. Long-term benefits were originally calculated at the short-term rate of $1,300 per week. However, in 2012, the Board determined that a recalculation of the long-term earnings basis was required, resulting in a long-term earnings basis of $1,100 per week. As the delay in recalculation was through administrative error, the Board did not recover the overpayment. The worker appealed a decision of the Appeals Resolution Officer confirming the recalculation of the earnings basis.
The worker was in permanent employment. However, the worker was on voluntary temporary lay-off for about six months of each of the two years prior to the accident. During those years, she received EI benefits and supplementary unemployment benefits (SUBs) from the employer. It was clear that the short-term earnings profile of four weeks prior to the accident did not reflect the long-term earnings profile of periods of lay-off. A long-term recalculation was required.
The worker was on voluntary lay-off from January to July 2007. She worked from July 2007 to January 2008. She was again on voluntary lay-off from January to June 2008. She worked from June 2008 until injured in July 2008. A recalculation period of one year includes the second voluntary lay-off. This was a non-earning period that is part of the worker's employment pattern and, in accordance with Board policy, is not factored out of the recalculation period.
According to Board policy EI benefits received during the recalculation period are included as earnings. Board policy does not explicitly outline whether SUBs are included or excluded. The Vice-Chair found that the SUBS are analogous to EI benefits and, thus, should also be included as earnings.
There was detailed payroll and tax information available. The Vice-Chair determined the income from employment from July to December 2007, from January to July 2008, EI benefits from January to June 2008, taxable allowances in 2008 which were likely benefits received from the employer, and the SUBs received from January to June 2008. The result was average weekly earnings of $1,225.
The correct long-term earnings basis was $1,225. The appeal was allowed.