Appeals Resolution Officer Decision
DECISION NUMBER:
20230070
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
l. mansueti, appeals resolution officer
MAY 10, 2023
ISSUE
The worker objects to the Payment Specialist decision dated May 11, 2022 communicating their long-term average earnings loss of earnings (LOE) benefit rate calculation based on their most recent employment earnings, totalling $769.09 per week effective October 22, 2021.
BACKGROUND
On July 26, 2021, the worker was disconnecting a hose from a pump that was heavier than anticipated, and they sustained a groin and low back injury. The worker was working as a Millwright in Province X at the time of injury. They had been hired through a staffing agency on a contract position, which commenced on July 11, 2021. The worker signed a WSIB Election to Claim Benefits form on August 20, 2021, as the injury occurred outside the province of Y.
Entitlement was accepted for an abdominal strain, low back strain, and inguinal hernia for health care and LOE benefits effective July 30, 2021. The worker was determined to have a non-permanent employment pattern. The operating area requested the worker provide pre-accident earnings and employment information to establish their long-term rate, as an LOE benefit recalculation would be required in this case.
In November 2021, a long-term recalculation was completed based on the worker’s earnings from January 1, 2020 to July 25, 2021, wherein their LOE weekly benefit rate totalled $557.65 effective October 22, 2021. The worker objected to the long-term rate, and provided additional information for review. Upon reconsideration, the worker’s long-term benefit rate increased to $681.75 per week. The operating area applied operational policy 18-02-06, as it was noted the worker continued working post-accident until July 30, 2021. As such, the worker’s pre-injury earnings (earnings from January 1, 2020 to July 24, 2021) and most recent employment earnings (January 1, 2020 to July 29, 2021) were calculated, and the long-term rate was based on the most recent employment earnings as they were higher than the pre-injury earnings.
The worker continued to object to the long-term rate, and provided additional earnings information for review. The reconsideration letter dated May 11, 2022 communicated the worker’s long-term average earnings LOE benefit rate was based on their most recent employment earnings, totalling $769.09 per week effective October 22, 2021.
The worker continued to object to the long-term rate recalculation, and this is now the issue before the Appeals Services Division (ASD).
AUTHORITY
Section 2(1) and 53 of the Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
18-02-04 Determining Long-term Average Earnings: Workers in Non-permanent Employment
18-02-06 Determining Average Earnings – Recurrences
18-02-08 Determining Average Earnings – Exceptional Cases
April 9, 2021
October 12, 2004
January 2, 2013
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the worker’s earnings basis ought to be calculated using the average earnings of a journeyperson.
The record contains a transcript from Carpenter Millwright College confirming the worker was enrolled in a program for Industrial Mechanic (Millwright) (Advanced) from October 26, 2020 to December 18, 2020. The worker successfully completed this program, and received a Certificate of Qualification for Industrial Mechanic (Millwright) on January 8, 2021.
The worker was hired through a staffing agency to commence a contract as a Millwright on July 11, 2021. The worker earned $42 per hour, working irregular hours including mandatory overtime. The workplace accident occurred on July 26, 2021. The worker was determined to have a non-permanent employment pattern, thus a long-term recalculation was determined to be necessary.
The operating area requested pre-accident earnings information to complete the long-term recalculation. The worker submitted the requested information, which included employment with various employers as well as periods of EI benefits while they attended school. The worker’s long-term recalculation was based on their most recent employment earnings from January 1, 2020 to July 29, 2021. It is noted the worker questioned the recalculation period because they had been enrolled in school during that time and they had earned 4th year apprenticeship wages which were much lower than their more recent journeyperson earnings. The worker indicated their earning potential increased following the completion of the Industrial Mechanic (Millwright) certificate program.
In accordance with operational policy 18-02-04, I am in agreement a review of the worker’s earnings basis is warranted given the worker has a non-permanent employment pattern. The nature of employment for an Industrial Mechanic (Millwright) typically involves movement from job to job and periods of unemployment.
The worker representative submitted that the earnings from January 1, 2020 to July 29, 2020 should not be used for the long-term recalculation, as these earnings are not an accurate reflection of a journeyperson. The worker representative pointed to operational policy 18-02-08, which indicates a long-term recalculation is not required if the worker is an apprentice. I acknowledge the worker was an apprentice prior to working with the employer, and their actual pre-injury earnings were used to establish their earnings basis.
Operational policy 18-02-08 and section 53(4.1) of WSIA, state in part:
The Board shall determine the average earnings of a worker who is an apprentice as follows:
The average earnings are an amount equal to the average earnings of a journeyperson employed by the employer in the same trade as that in which the worker was working at the time of the injury.
If the worker’s employer did not employ a journeyperson in the same trade as that in which the worker was working at the time of the injury, the average earnings are an amount equal to the average earnings of a journeyperson employed in the employer’s locality in the same trade at the time of the injury.
The worker representative submitted that if it is determined that the worker’s actual earnings are to be used to establish the earnings basis, the recalculation period ought to be limited from January 8, 2021 (date of certificate) to July 29, 2021. They also pointed to the fact the worker’s earnings post-January 8, 2021 may also not be a true reflection of their earnings as they had recently completed the academic portion of their training. In addition, the worker representative indicated it was unclear as to whether the worker had completed the necessary work hours for a Millwright apprentice. It is the positon of the worker representative that the worker continue to receive LOE benefits based on their short-term rate.
In review of the evidence before me, I accept the worker was working as a journeyperson at the time of injury and had a non-permanent employment pattern. As per operational policy 18-02-04, it would be unfair to continue to pay the worker based on their short-term average earnings as the earnings basis does not account for their non-permanent employment pattern, which includes fluctuations in earnings, movement from job to job, and periods of unemployment. In accordance with the aforementioned policy, the recalculation period is typically based on employment in the 24 months before the injury, which may be extended or shortened depending on the individual circumstances of the case. With regard for the fact the worker’s title had changed from apprentice to journeyperson, there does not appear to any break in the employment pattern as they continued to work in a non-permanent employment pattern. The issue here is that the worker was not employed long enough as a journeyperson to have established an earnings pattern for which their LOE benefit rate could reasonably be established.
Given the exceptional circumstances of this case, I find the application of operational policy 18-02-08 and section 53(4.1) of WSIA is appropriate. I accept the worker’s earnings basis ought to be calculated using the average earnings of a journeyperson employed by the employer in the same trade as that in which the worker was working at the time of injury. If the worker’s employer did not employ a journeyperson in the same trade as that in which the worker was working at the time of injury, the average earnings are an amount equal to the average earnings of a journeyperson employed in the employer’s locality in the same trade at the time of the injury.
CONCLUSION
I conclude the worker’s earnings basis ought to be calculated using the average earnings of a journeyperson in accordance with section 53(4.1) of WSIA.
The worker’s objection is allowed in part.
DATED May 10, 2023
L. Mansueti
Appeals Resolution Officer
Appeals Services Division