WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150093 Decision date: August 11, 2015
OBJECTING PARTY: Worker REPRESENTED by: Worker Representative
RESPONDENT: Employer REPRESENTED by: Self-represented
HEARING: Hearing in Writing
HEARD by: Michelle Elliott, Appeals Resolution Officer
ISSUE
The worker is requesting entitlement for:
- A recalculation of his long-term earnings basis rate. The decision from the Case Manager dated June 17, 2014 indicated the worker's long-term average earnings would be based on the short-term average earnings and as such, the earnings basis for the long-term rate is the equivalent of the short-term rate.
BACKGROUND
On December 17, 2013, this worker was hired as a labourer for $13.00 an hour based on an eight hour workday as documented by the accident employer report. Memorandum #13 in the claim file dated March 10, 2014 indicates the worker was specifically hired for one week only, for one specific job which was, loading a shipping container. On day two of employment, December 18, 2013, the worker sustained a fracture injury to his right lower leg.
The issue regarding the worker's short-term earnings and long-term earnings was reviewed by a WSIB Payment Specialist in memorandum #24 dated April 9, 2014. This memorandum indicates the worker was hired for a short-term contract and had only been employed for one full day before the date of injury. As such, four weeks prior earnings could not be obtained for establishing a short-term earnings basis.
The worker had previously been employed as a mechanic with a different employer but had been laid off in May 2013. Establishing a pre-accident employment pattern was difficult in this case and not considered reliable (for substantiating this worker has an industry specific pattern for irregular employment) with the information available.
He was collecting Employment Insurance Benefits when he secured this short-term employment contract with the accident employer. The WSIB Payment Specialist indicated that normally the WSIB Policy regarding “Non-Permanent Employment” would be considered for the long-term earnings basis; however, the accident employer did not normally hire casual workers and the type of work this worker was hired to perform could not be compared to other employees.
The information normally used for looking at Non-Permanent Workers was not satisfactory for the purpose of meeting the WSIB criteria in terms of changing the earnings basis. As such, the Payment Specialist determined that the short-term earnings would be used for establishing the long-term earnings.
Case Manager Decision
The decision from the Case Manager dated June 17, 2014 indicates the worker was hired to help load a container, and his employment contract would cease once the job was completed. This was the first time the employer had hired someone to assist on a casual basis. All other employees were permanent full-time or part-time. At the time of the incident, the worker was collecting Employment Insurance and was not with a different/concurrent employer performing similar work as in his previous job as a mechanic.
The Case Manager accepted that the long-term Loss of Earnings (LOE) rate would be the same as the short-term earnings rate. This was related to the fact that long-term earnings for an employee in a similar situation could not be provided by the employer, and the worker had not actually been employed for four weeks before the workplace accident.
Worker's Position
On behalf of the worker, the worker's representative has indicated that Policy Document 18-02-04 outlines how a long-term earnings basis should be calculated for a worker in Non-Permanent employment. It is the position of the worker and his representative that it was unfair to continue paying the worker a Loss of Earnings Benefit based on the short-term average earnings.
AUTHORITY
The following WSIB Operational Policies apply:
18-02-02; Determining Short-Term Average Earnings
18-02-03; Determining Long-term Average Earnings for Workers in Permanent Employment
18-02-04; Determining Long-term Average Earnings for Workers in Non-Permanent Employment
ANALYSIS
I find that the use of the short-term earnings for the long-term earnings is justified in this case. There was a substantial break in employment before the worker found his job with the accident employer and it would be unjust to incorporate any previous earnings in the earnings basis for this claim.
This worker was hired to do a specific job for a very short period of time for $13.00 per hour for an 8 hour day. The worker was on Employment Insurance Benefits before his hiring for this specific job. He had not worked as a mechanic at a higher wage since May 2013. Although the worker had been employed as an automotive mechanic for $23.00 per hour in May 2013, the evidence does not substantiate that he was performing similar employment activities after that employment relationship ceased.
A copy of the worker's resume in the claim file demonstrates he was working as a mechanic from 2012 to 2013. Prior to that he was a mechanics’ apprentice and before that he was a Shop Mechanic Aid. He also had experience in debris removal. There is no documented long term history of this worker being employed in an industry specific irregular/seasonal pattern. Given the worker’s employment history, there is no evidence that would compel me to alter the short term earnings basis and long term earnings basis in this case.
There was an extended period of time where the worker was not employed as a mechanic but rather was receiving Employment Insurance Benefits. To include the worker's previous earnings in a long-term recalculation would misrepresent his long term earning profile capability and I have to consider this when applying earning basis policies.
This worker was unemployed since May 2013 and in fact, had accepted a position in this case, for a very short period of time with a specific wage that reflected the appropriate earnings for the job the worker agreed to perform. As such, using short-term earnings for the long-term earnings basis is justified in this worker's circumstances.
The worker's circumstances do not place him in a specific WSIB “long term earnings” policy classification for determining the long-term average earnings. As such, I am accepting that the long-term earnings basis in this case can be based on the wages for which this worker was hired to perform in the particular job he was injured on.
CONCLUSION
I conclude the following in this case:
- The use of short-term earnings for the long-term earnings basis is justified and the recalculation of the earnings basis for the long-term which would include the worker's previous earnings as a mechanic is not appropriate in this case.
The worker's objection is denied.
DATED: August 11, 2015
M Elliott Appeals Resolution Officer Appeals Services Division