Decision #10/00 - Type: Workers Compensation
An Appeal Panel review was held on January 21, 2000, at the request of the claimant.
Whether or not the claimant's average earnings have been correctly calculated at $22,221.45 per year.
That the claimant's average earnings have been correctly calculated at $22,221.45 per year.
While employed as a sub-contractor - roofer on November 15, 1996, the claimant slipped off of a roof falling approximately 12 feet and injured his right ankle. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.
Subsequent file information showed that the claimant's average earnings were based on his 1995 tax return, which lowered his benefit entitlement. On February 24, 1997, the claimant appealed the decision to Review Office.
On April 18, 1997, Review Office determined that the claimant's average earnings had not been correctly established. Review Office indicated that the claimant commenced work for the accident employer some ten weeks prior to his accident. Before working with the accident employer, the claimant had been working as a parts clerk. It was acknowledged by Review Office that the claimant had the potential to earn substantially more money as a roofer than as a parts clerk. The payment assessor based the claimant's average earnings on his 1995 income as the claimant was considered to be a seasonal subcontractor so his earnings over the weeks just prior to his accident would not necessarily be an accurate reflection of his long term average earnings.
A call to the accident employer was then made. The employer advised that the average annual salary of all employees was $27,000 to $28,000. The employer noted, however, that the range of individual employees was from less than $10,000 to more than $30,000. The employer indicated that he considered $17,494.88 to be an accurate representation of the claimant's prospective annual earnings with his firm. This was the amount that the payment assessor had determined was the claimant's average earnings based on his 1995 earnings.
Review Office indicated that it obtained earning information from the Canadian Census and the WCB's Employer Services Branch. The census information gave the average annual earnings of a roofer as $23,391. The WCB information provided an average of $19,573.46.
Review Office indicated that neither of the above figures was perfectly ideal for the purposes of establishing average earnings. "For example, the census information may not include possible employment insurance benefits and the WCB figure includes all roofers regardless of whether they work part time or full time and is discounted for materials. (For assessment purposes, employers in the roofing trade report to the WCB either 95% or 40% of the payments they make to subcontractors as wages depending on what materials the subcontractor is required to provide. In the event they are injured at work, subcontractors' WCB benefits are based on either 95% or 40% of the gross payments they received from the employer.)"
It was the opinion of Review Office that the best representation of the claimant's probable annual earnings was the census information. It was considered that the annual average earnings for the claimant should be $22,221.45 (95% of $23, 391) effective February 8, 1997.
In December 1999, the claimant appealed Review Office's decision stating that the amount reached by Review Office was still below the level of income that he could actually have earned if not for the accident on November 15, 1996. The claimant was of the position that his base level of income should be set at $32,000 annual gross or $24,000.00 annual net, after expenses and taxes, was justified. This led to an Appeal Panel review, which took place on January 21, 2000.
The claimant appeals the amount of his annual average earnings having been established at $22,221.45. He advances the argument that "this level is well below the industry average according to the research [he has] done." In addition to his submitting three letters of reference, the claimant obtained estimates from two local roofing businesses as to what would be the gross annual income for an average roofer. The worker contended that his annual average earnings should have been set at between $32,000.00 and $35,000.00.
Prior to rendering its decision, Review Office researched the earnings of roofers from the Canadian Census as well as from the WCB's Employer Services Branch. "The census information gave the average annual earnings of a roofer as $23,391. The WCB information provided an average of $19,573.46." Review Office reasoned that the best reflection of a roofer's probable annual income would be the census information.
We agree with the determination made by Review Office together with its rationale. Accordingly, we find that the claimant's average annual earnings have been correctly calculated at $22,221.45 (95% of $23,391).
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 31st day of January, 2000