DECISION NUMBER:
20240029
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
S. RECINE, APPEALS RESOLUTION OFFICER
DATED:
MARCH 22, 2024
ISSUES
The worker along with their representative objects to the Payment Specialist’s reconsideration decision letter of September 12, 2023 that confirmed the worker’s long-term benefit rate recalculation.
BACKGROUND
The worker is a warehouse labourer and on May 20, 2023 their right foot and ankle was crushed between a standing forklift/jack and a pallet. The worker’s claim was approved for health care benefits related to a tibia-fibula fracture and superficial peroneal nerve injury along with loss of earnings (LOE) benefits.
File memo number 7 dated May 31, 2023 detailed calculation of the worker’s short-term weekly benefit rate and confirmed a weekly net average earnings (NAE) of $829.57. The Payment Specialist confirmed the worker was permanently employed, their earnings varied from week to week and a long-term earnings recalculation was required after the initial 12 weeks of LOE benefits. Subsequent file memo 26 and a decision letter dated August 15, 2023 concerning a long-term recalculation (LTR) of LOE benefits confirmed the worker’s weekly rate had reduced to $728.45 per week effective August 15, 2023.
The Payment Specialist’s September 12, 2023 decision letter reconsidered the LTR based on worker provided pay slips and their long-term adjusted weekly rate increased slightly to $740.49 per week.
The subject of this appeal is the reduced long-term weekly LOE benefit rate adjustment. Worker’s position
The worker’s correspondence dated September 27, 2023 confirmed they wholly understood the LTR based on earnings information received and application of WSIB policy. However, they expressed the WSIB’s mandate was to provide compensation and other benefits in a financially responsible and accountable way, but they were being unfair as their overtime earnings were not being considered. They requested a reconsideration in being paid their entire “loss of earnings” including overtime as they had bills to pay, which included financially supporting their spouse and two children back home.
Employer’s position
The employer is not participating in this appeal and has not provided a written submission or any specific direction concerning the worker’s objection.
AUTHORITY
Operational Policy Manual
Published
18-02-02 Determining Short-Term Average Earnings
18-02-03 Determining Long-Term Average Earnings: Workers In Permanent Employment
January 3, 2023
April 9, 2021
ANALYSIS
I have carefully considered all available information, legislation and relevant operational policies in reaching this decision. I find that an LTR was appropriately determined and an adjustment is not warranted.
WSIB Operational Policy Manual 18-02-02 Determining Short-Term Average Earnings reads in part:
Policy
Short-term average earnings are the worker’s earnings from the accident employer and all other employment at the time of the injury. Loss of earnings (LOE) benefits are paid for the first 12 weeks following the injury based on the short-term average earnings.
WSIB Operational Policy Manual 18-02-03 Determining Long-Term Average Earnings: Workers in Permanent Employment reads in part:
Policy
The long-term average earnings of a worker in permanent employment are generally the same as the worker's short-term average earnings.
A worker's average earnings are recalculated to long-term average earnings if the
WSIB determines that it is unfair to continue paying loss of earnings (LOE) benefits based on the short-term average earnings. Either of the workplace parties can request a recalculation.
LOE benefits are paid based on a worker's long-term average earnings from the beginning of the 13th week of LOE benefits.
Guidelines
A recalculation involves redetermining a worker's average earnings taking into account the worker's long-term employment pattern. The recalculated long-term average earnings become effective from the beginning of the 13th week of LOE benefits.
A break in the employment pattern is a change in a worker's employment that is significant enough to make the period before the break irrelevant to the determination of the worker's long- term average earnings. This may involve a permanent change:
of employers
from full- to part-time work, or vice-versa
from permanent to non-permanent employment, or vice versa
in job grade, classification, trade, or method of payment
from self-employment to permanent employment, or vice-versa, or
in status from dependent contractor to worker in permanent employment, see 18-02-08, Determining Average Earnings - Exceptional Cases.
A break in the employment pattern shortens the recalculation period for long-term average earnings (see "Recalculation period" in this document).
File information confirms that the initial short-term earnings calculation included the worker’s overtime and there was no indication it was removed or neglected for inclusion in the LTR. The initial LTR was performed using employer provided earnings and it considered a break in employment, which excluded earnings prior to December 7, 2022. I note that the worker’s hire date with the employer was December 7, 2022.
Following the LTR recalculation, the worker expressed a concern with the reduced weekly LOE rate, and the Payment Specialist reconsidered the LTR with pay slips provided by the worker, which resulted in a nominal increase of the weekly LOE benefit. Based on my review and having regard for WSIB OPM 18-02-03, I find that the Payment Specialist has correctly and appropriately adjusted the worker’s LOE weekly benefit based on policy principles that reflect the worker’s long-term employment pattern at the time it was reviewed. Unfortunately, there are no exceptions that permit adjustment based on compassionate grounds or financial need under the auspices of the Workplace Safety & Insurance Act or WSIB Operational Policy Manual documents.
CONCLUSION
The worker’s objection is denied.
DATED March 22, 2024
S. Recine
Appeals Resolution Officer Appeals Services Division