Public Decisions | The Appeal Commission

Decision #55/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 11, 2001, at the request of the claimant. The Panel discussed this appeal on April 11, 2001.

Issue

Whether or not the worker's weekly pre-accident average earnings have been calculated correctly.

Decision

That the worker's weekly pre-accident average earnings have been calculated correctly.

Background

The claimant injured his neck and back while performing the duties of a journeyman painter on September 16, 1997. The Workers Compensation Board (WCB) accepted the claim and benefits commenced on September 25, 1997.

On August 27, 1999, a WCB Rehabilitation & Compensation Services Payment Assessor advised the claimant that his pre-accident average earnings had been established at $134.54 per week, based on his 1995 income tax return. On February 29, 2000, the claimant appealed this decision to Review Office.

In a decision dated March 10, 2000, Review Office determined that the claimant's weekly pre-accident earnings should be $181.98 per week. Review Office took into consideration a particular clause in the administrative guidelines of WCB policy 44.80.10.10 when rendering its decision. Review Office was of the opinion that using the claimant's 12 month period immediately prior to his accident provided him with the highest pre-accident average earnings permissible under Policy 44.80.10.10. By doing so, this increases the claimant's average earnings to $181.98. Review Office later confirmed this decision in a letter dated January 19, 2001.

On January 30, 2001, the claimant appealed Review Office's decisions dated March 10, 2000 and January 19, 2001. On April 11, 2001, an oral hearing was held at the Appeal Commission to consider the claimant's appeal.

Reasons

This is the case of a worker who was injured in a workplace accident while employed as a painter. His claim was accepted by WCB and wage loss benefits were paid accordingly.

There is no challenge to the acceptance of the claim, or to the amount of wage loss benefits paid in the first twelve weeks of the claim. Problems arose - from the claimant's perspective - following this period.

Section 45(1) of The Workers Compensation Act, as well as Board Policy 44.80.10.10 set out the process for determining average earnings.

Section 4 of the policy states, in part:

An average earnings review occurs whenever the WCB recalculates a worker's average earnings. The WCB may review and adjust a worker's average earnings on any claim when further documentation is received which indicates that a recalculation would result in a more accurate representation of the actual loss of earnings.

Adjustments arising . are retroactive to the time of accident if they result in an increase and effective at 13 weeks if they result in a decrease in the worker's average earnings.

It is this last clause which is relevant to this appeal. Where a worker has had more or less steady employment, the calculation of average earning capacity is relatively straightforward. It is where a worker has had a number of different jobs, with varying periods of unemployment, that it can become quite difficult.

In accordance with the Act and Board policy, the claimant's benefits were adjusted in the thirteenth week to reflect his pre-accident average earnings. He is of the view that the amount calculated by the Board as his average annual earnings considerably underestimates his earning capacity. He has appealed this calculation to the Commission.

Average yearly earnings include any remuneration that the worker received as a result of employment or employment-insurance benefits. To determine a worker's true loss of earnings, the WCB will generally use documentable employment data from any consecutive 12-month period during the one or two years before the compensable accident. If the WCB determines that this calculation does not produce an accurate reflection of a worker's loss of earnings, it will generally use documentable employment data from a 12-month period during, or an average of, a longer period of up to five years.

If the above formula does not result in a fair and accurate calculation, the policy also allows for determination based on "probable yearly earning capacity", which is stated as follows:

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 of the WCA (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."

For the claimant to succeed in this appeal, the panel must determine that the Board did not accurately calculate either the claimant's average yearly earnings or his probable yearly earning capacity.

We have concluded that the Board did accurately and properly calculate this claimant's average pre-accident earnings. In coming to this conclusion, we have fully reviewed the claims file and have had the benefit of a presentation by the claimant.

In his presentation, the claimant placed considerable weight on income he maintains he would have earned, had it not been for the accident. He presented us with evidence he maintained showed that he would have had one of three jobs, in the months following the accident.

One job was driving a truck for an oil drilling operation in Saskatchewan. The second was doing contract work for Manitoba Housing in western Manitoba. The third was work as a journeyman painter.

In the first two cases, all he was able to show us was that he had made phone calls inquiring about these positions. He had no evidence of job offers or contracts of employment. There was no indication as to how much work was available or for how long a position might last or what potential earnings might have been. In the third case, he presented a letter from the Painters' Union which stated that, at the time, there were a number of projects which had a demand for painters. Again, there was no offer of employment, or even any evidence that the claimant was a member of the union.

In reviewing the file and hearing the claimant's testimony, we note that the claimant has had a very irregular work pattern, with many jobs of short duration, with a number of periods of unemployment, and with many changes of geographical location. There were periods when he took off a number of months to deal with other, personal matters. While we pass no judgement on this, we note that this pattern makes it extremely difficult, if not impossible, to determine a higher average earning capacity than that determined by the board. Had the claimant established, post injury, a pattern of steady, regular employment, his argument for a higher earning capacity might have been more convincing.

The claimant also raised the fact that Policy 44.80.10.10 speaks to "exceptional circumstances" and argued that his situation should be considered as such. However, he did not present any evidence to support such a position. Nor, did he show us or could we determine on our review of the schedules how his situation would fit under any of the schedules of special circumstances appended to the policy.

Based on the policy and all the evidence placed before us to consider, we can find no support for the claimant's position that his average earning capacity was not calculated correctly.

Accordingly, the appeal is denied and, thus, the decision of the Review Office is upheld.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of April, 2001

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