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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 2151 17
8/17/2017
C. Ramsay

  • Earnings basis (social assistance program)
  • Earnings basis (long-term)
  • Board Directives and Guidelines (earnings basis) (non-permanent or irregular employment) (non-earning period)

A construction worker suffered a shoulder injury in October 2009, for which the Board granted the worker a 9% NEL award. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of long-term benefits.
The Board based long-term benefits on the worker's earnings from January 2008 to October 2009, with certain non-earning periods excluded from the calculation. The worker submitted that further non-earning periods should be excluded from the calculation.
The worker was incarcerated for 12 days in June 2009, and he was on social assistance for 113 days during the period from July 2009 to October 2009. Evidence indicated that he had already received EI benefits in 2009 and would not have qualified for further EI during the period in which he received social assistance.
The worker was in non-permanent employment. Board Operational Policy Manual, Document No. 18-02-04, on determining long-term average earnings for workers in non-permanent employment, provides for exclusion of certain non-earning periods from the recalculation, including periods of incarceration and periods on social assistance benefits. Regarding social assistance benefits, the policy also states the this period of exclusion may include periods during which the worker was not working and receiving social assistance benefits, or working and receiving social assistance benefits.
In this case, there was evidence that the worker worked for a short period of time while receiving social assistance benefits. In this circumstance, the Vice-Chair found that the entire period during which the worker was on social assistance benefits should be excluded.
Thus, the 12 days of incarceration and the 113 days on social assistance should be excluded from the recalculation period. After excluding these 125 days, the recalculation of long-term average earnings increased from about $550 per week to $680 per week. The appeal was allowed.