Decision #80/00 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on July 19, 2000, at the request of the claimant. The Panel discussed this appeal on July 19, 2000.
Issue
Whether or not the worker's average earnings have been correctly determined.
Decision
That the worker's average earnings have been correctly determined.
Background
While employed as an electrician on September 16, 1999, the claimant was drilling a hole in a piece of steel and injured his right hand. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on September 17, 1999.
Information obtained from the employer indicated that the claimant started working for the firm on August 31, 1999. The claimant was paid $31.16 per hour for a 40 hour work week. Average earnings were set at $1,246.40 and the compensation rate was calculated at $580.00.
On November 10, 1999, a WCB payment assessor advised the claimant that his first 12 weeks of benefits would be calculated using the information initially provided by his employer. After time loss approached 12 weeks, then his rate of pay would be reviewed. The WCB subsequently obtained copies of the claimant's 1997 and 1998 income tax returns from Revenue Canada which revealed the following:
In 1997 the claimant earned $18,790.00 of T4 earnings and in 1998 he earned $13,573.00 T4 earnings. The claimant did not quality for employment insurance in either years.
In a letter dated December 16, 1999, the claimant was advised that his new compensation rate would be $266.36 a week, effective December 10, 1999 and that his new average earning rate was $361.35 per week. This benefit amount was based on the claimant's 1997 income tax return. On February 6, 2000, the claimant appealed this decision to Review Office.
On February 18, 2000, Review Office determined that the claimant's average earnings established at $361.35 per week had been correctly determined. Review Office stated that according to the average earnings policy, average yearly earnings were a worker's earnings for any consecutive 12 month period during the one or two years preceding the commencement of the loss of earnings as a result of the injury. Average yearly earnings included any remuneration which the claimant received as a result of the employment. In the claimant's case, Review Office concurred with the payment assessor that it was appropriate to utilize the claimant's 1997 earnings over the 1998 and 1999 earnings as the 1997 figures produced a higher amount for the claimant. On April 3, 2000, the claimant appealed Review Office's decision and an oral hearing was arranged.
Reasons
Section 45 of The Workers Compensation Act (the Act) prescribes the method by which the WCB establishes average earnings. In conjunction with this section of the Act, the Board of Directors has developed policy 44.80.10.10 (the policy) to determine a worker's average earnings at the time of a compensable accident. According to the policy, it "will ordinarily result in the following applications: a) Permanent full-time employee. b) Part-time or seasonal workers or workers with irregular earnings patterns. c) Workers with irregular earnings patterns and significant changes in earnings from previous year."
Following acceptance of his claim, the WCB informed the worker that he would be paid 12 weeks of benefits based on his earnings at the time of his accident. The WCB considered the claimant to be a part-time or seasonal worker and not a permanent full-time employee of the accident employer. Therefore, effective the 13th week, benefits would be based on his average yearly earnings, which are defined in the policy as:
"Average yearly earnings are the worker's earnings for any documentable consecutive twelve month period during the one or two years preceding the commencement of the loss of earnings as a result of the injury. Average yearly earnings include any remuneration which the worker received as a result of the employment." After its review, the WCB reduced the claimant's compensation rate from $580 to $266.36 per week.
The claimant's advocate advanced the argument that the worker should never have been classified as a part-time or seasonal worker, but rather, he should have been regarded as a worker with irregular earnings pattern. In such a case, the WCB would then, according to the policy, initiate an average earnings review from week 13 onwards based on probable yearly earning capacity.
"...[H]e should have never been put into the category of average earnings policy, because of the fact that - - well, you have stated in one of your letters written to him, you have classified him as a seasonal worker. He is not. He is a contractual employee. So he is irregular earnings patterns, which in, excuse me, in your policy 44.80.10.10, it clearly states that he is an irregular earnings pattern .
During the time of his accident, he was making approximately $1200.00 a week, okay. And as I stated in the letter that I wrote, and the letter that was written to you on February, sometime after February 24th. It states that the business manager for the union states that he will testify, well, he didn't come here, but he says there was employment afterwards and my father would have continued on employment.
So his probable yearly earnings would have continued onto with $1200.00 a week, not as your suggestion of $361.00, okay. So my, our complaint is he is not a seasonal worker. He is considered an irregular worker, so, therefore, an average earnings policy would not be considered with him, but a probable yearly earnings would, as it states."
With all due respect to the claimant's advocate, we do not come to the same conclusion. Section 7(c) of the policy should, in our view, be interpreted in combination with the definition of 'probable yearly earning capacity'. The term is defined as:
"Probable yearly earning capacity is the worker's projected earnings for the next twelve months. It is based on the worker's regular earnings at the time of accident as applied to the worker's established work pattern. Consistent with Section 45 as it applies January 1, 1992 the probable yearly earning capacity must be based on the worker's earnings before the accident but may be based on 'income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just.' (Emphasis ours)
We find that the claimant does not have an established work pattern as is required by the particular portion of the policy upon which he is relying. The evidence further fails to confirm that he has experienced a significant or irregular change in earnings from the previous year. The main reason being that the claimant did not work a full 12-month period prior to his compensable injury. In addition, we find based on the evidence that the claimant is more properly classified as part-time or seasonal worker. At the time of his accident, the claimant was hired to do a job, which was projected to take five weeks and he was not hired on as a permanent full-time employee.
The claimant's appeal is hereby dismissed as we have concluded that his average earnings have been correctly determined in accordance with section 45 of the Act and policy 44.80.10.10.
Panel Members
R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of August, 2000