APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20260002
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT PARTY:
EMPLOYER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
JENNIFER MANGOFF, APPEALS RESOLUTION OFFICER
SEPTEMBER 9, 2025
ISSUE
The worker objects to the December 4, 2023, decision that found the wages of a Cook were to be used for determining average earnings.
The worker’s representative has identified the March 27, 2024, decision that terminated the worker’s benefits as an issue under appeal. However, this issue is not properly before me as there is no appeals readiness form and as such, I will make no finding regarding the termination of the worker’s benefits.
BACKGROUND
The previous Appeals Resolution Officer’s decision provides a detailed history of this claim. Briefly, on June 14, 2010, the worker fell off a second-story balcony landing on a cement driveway. Entitlement was accepted for a burst fracture at T6 that required thoracic fusion. While the Case Manager found the worker had fully recovered, the Appeals Resolution Officer’s decision dated March 23, 2023, found the worker had reached maximum medical recovery on October 28, 2010, and the evidence indicated the worker would have a permanent back impairment. Further, the Appeals Resolution Officer concluded the worker was a student as defined under the WSIA and entitled to a return-to-work assessment, and the LOE benefit entitlement was to be reviewed from December 2010 when the worker stopped attending school. The Appeals Resolution Officer deferred the payment of LOE benefits to the operating area; however, it was noted with respect to the retroactive LOE benefit payment the worker was participating in the Ontario Youth Apprenticeship Program, training to become a Chef. They were accepted in 2009, and it was expected the worker would have completed a co-op program by the fall of 2010. The worker was planning on continuing their training at College A in the culinary arts program in September 2011. It was confirmed that the worker’s backup plan was to work in construction. Further, the Appeals Resolution Officer found the worker’s compensable back injury affected their vocational prospects, as their permanent restrictions precluded them from pursuing a career path as a Chef or in construction.
On December 4, 2023, the Case Manager implemented the Appeals Resolution Officer’s decision and found the earnings basis was to be determined using the entry-level wages of the suitable occupation of
a Cook. Full LOE benefits were paid from September 7, 2010, until April 30, 2012, inclusive. Further, the payment of full LOE benefits less any earnings the worker had, were allowed.
On December 13, 2023, a return-to-work plan was approved, and the vocational goal selected as appropriate was Customer Service Representative. On March 25, 2024, the worker successfully completed the plan, and the Case Manager determined the worker was able to restore their pre-accident earnings. As such, the payment of LOE benefits ended, and the Case Manager indicated that a final LOE benefit review was not needed as there were no ongoing LOE benefits being paid.
In recognition of the permanent impairment, the worker was provided with a 13% non-economic loss (NEL) benefit.
The worker’s representative argues the worker’s career path was to become a Chef and not a Cook and submits the earnings determination should be based on that of a Chef.
The employer is not participating in this appeal.
As the decision remained unchanged, the matter was referred to the Appeals Services Division for further review and consideration.
AUTHORITY
Operational Policy Manual
Published
18-02-08 – Determining Average Earnings-Exceptional Cases
September 29, 2023
ANALYSIS
I have carefully considered all of the available information, legislation, relevant operational policies, and any submissions provided in reaching this decision. After having conducted a thorough review of the circumstances of this claim, I find the evidence supports granting the worker’s appeal. The following is a summary of my observations and findings.
As outlined in the decision dated March 23, 2023, the Appeals Resolution Officer concluded the worker is a student under the WSIA and identified operational policy 18-02-08 outlines how the LOE benefit rate would be calculated and I am bound by these findings.
Operational policy 18-02-08 outlines the method to determine average earnings in exceptional cases. This operational policy states in part
For workers who are students, the average earnings are calculated by taking into account:
the worker’s earnings from all of the employers the worker was employed with at the time of injury
any pattern of employment that resulted in a variation in the worker's earnings, and
other information considered appropriate.
The average earnings of a worker, who is a student, are recalculated
if the worker is unable to complete their education as a result of the injury, when the worker would have completed their education if the injury had not occurred, or
in any other case, when the worker has ended their education.
The recalculated average earnings of a worker, who is a student, are determined by using the average earnings of a worker employed in a job in which the injured worker would likely be employed if the injury had not occurred.
If this is not possible, the recalculated average earnings are based upon the:
average industrial wage for the year in which the worker's injury occurred
worker's level of education, and
worker’s aptitude and skills at the time of the injury.
In my review of the Appeals Resolution Officer decision, on page 6 it was noted the record indicated the worker had plans to work as a chef or in construction prior to the workplace accident. Further, it was noted that the worker’s compensable back injury appears to have affected the worker’s vocational prospects as their permanent restrictions precluded them from pursuing these career paths. In my view, the Appeals Resolution Officer accepted that the worker’s career path was either as a chef or in construction, and I am bound by this finding.
The worker’s representative argues that the worker’s intention was always to become a chef with a backup plan of working in construction. It is argued that the determination that the most achievable occupation was that of a Cook was incorrect. While the Case Manager concluded the worker’s LOE benefit rate should be based on the wage of a Cook, I find the worker’s LOE benefit rate should be calculated based on the wage of a Chef.
Operational policy outlined above is specific about the information required to calculate the average earnings and what is required to conduct a recalculation. The Case Manager found the earnings should be based on the entry-level of a Cook. However, operational policy indicates the recalculated average of a worker, who is a student, are determined by using the average earnings of a worker employed in a job which the injured worker would likely be employed if the injury had not occurred. As such, I find the worker’s average earnings should be based on the median/average wage of a Chef, National occupational classification 62200.
CONCLUSION
I conclude that the worker’s average earnings should be based on the median/average wage of a Chef, National occupational classification 62200.
I make no finding on whether the payment of LOE benefits ended appropriately as this issue is not before me.
The worker’s representative has requested an explanation of the LOE benefits paid. Should this still be required, the operating area can be contacted for further information.
The worker's objection is allowed.
DATED SEPTEMBER 9, 2025
Jennifer Mangoff
Appeals Resolution Officer Appeals Services Division