Decision #19/00 - Type: Workers Compensation
An Appeal Panel review was held on February 11, 2000, at the request of the claimant.
Whether or not the claimant's average earnings have been correctly calculated.
That the claimant's average earnings have been correctly calculated.
On October 30, 1998, the claimant submitted an application for compensation benefits indicating that the repetitive nature of his job as a roofer caused injury to his right upper extremity. The claimant was diagnosed with right lateral epicondylitis. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.
In accordance with WCB policy 126.96.36.199 "Average Earnings", the claimant's initial 12 weeks of wage loss benefits were based on his reported earnings. On the 13th week, the claimant's wage loss benefits were reduced based on what was considered to be his long term loss of earning capacity which amounted to $382.67 per week. The claimant disagreed with the decision and the case was referred to Review Office.
On September 24, 1999, Review Office noted that the payment assessor reviewed the claimant's 1996 and 1997 earnings to calculate average earnings. It was noted that the claimant earned $29,156 in 1996. These were T4 earnings. The payment assessor decided that these could not be used to establish the claimant's average earnings as they were not indicative of his loss of earnings resultant from his 1998 accident given he was self-employed in 1998. Review Office agreed with this decision.
As cited by Review Office, the payment assessor decided to use the claimant's 1997 earnings to establish his average earnings. These were comprised of $5952 of employment insurance benefits and $29,918 of gross business income. Net income was $19,899. The employment insurance benefits could not be considered when establishing the claimant's average earnings as, since he was now considered self-employed, he no longer was entitled to collect these benefits. Review Office concurred that including them would compensate him for a loss he could not have.
The claimant's net income, rather than gross business income, was used to establish his average earnings. The claimant indicated that the difference is what he paid to have work sites cleaned after the completion of a job. Review Office concurred with the payment assessor's decision.
Consideration was also given by Review Office as to whether the claimant's 1998 earnings on a prospective basis would increase his average earnings. It was determined that they would not. The claimant's gross income was $12,461.47 from the beginning of the year to the end of September 1999. This translated to average weekly earnings of $359.49. This was lower than his current average earnings even before any reductions for business expenses were made. Using 1998 income to establish average earnings was not to the claimant's advantage. Review Office summarized that the claimant's average earnings had been established in accordance with the subsections 45(1), and 45(2) of the Workers Compensation Act. The claimant subsequently appealed Review Office's decision and a non-oral file review was held on February 11, 2000.
It would appear from our calculations that it is financially more advantageous for the claimant to have his average earnings calculated on the basis of his 1997 income as opposed to his 1998 income. We note that the claimant's status changed from that of a paid employee to that of a subcontractor in 1997. This then would seem to be the most appropriate basis upon which to calculate his average earnings. We agree with Review Office's reasoning and find that the claimant's average earnings have been correctly calculated.
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 28th day of February, 2000