Decision #67/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on May 16, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on May 16, 2001.
Issue
Whether or not the worker's average earnings have been calculated correctly.
Decision
That the worker's average earnings have not been calculated correctly.
Background
While performing the duties of a maintenance worker on June 7, 2000, the claimant suffered an injury to his lower back. The Workers Compensation Board (WCB) accepted the claim and the claimant is in receipt of wage loss benefits.
On August 24, 2000, the claimant provided the WCB with information concerning his prior work history. The claimant indicated that he left the employ of a meat packing plant in March 1999 and that he was in receipt of employment insurance benefits for the remainder of 1999. From January to April 2000, he worked as a long haul truck driver and then started working with the accident employer.
On October 26, 2000, a WCB payment assessor advised the claimant that his wage loss benefits were being decreased to $279.76 effective October 1, 2000, based on an average earnings review. On November 1, 2000, the claimant appealed the decision to Review Office as he was of the view that his WCB benefits should be based on his earnings while he was employed as a long distance truck driver.
In a decision dated November 17, 2000, Review Office determined that the claimant's average earnings should be $473.00 per week. Review Office noted from the claimant's appeal letter that he left his job as a truck driver so he would be able to work closer to home for the summer months. The claimant said that he planned on returning to truck driving in the fall. Review Office accepted that the claimant would have done so and was of the opinion that the claimant's average earnings should be based on a blend of his earnings with the accident employer and his probable earnings as a truck driver. Review Office stated it was not willing to base the claimant's average earnings solely on his historical earnings as a truck driver as he requested be done.
Review Office was not willing to use the claimant's earnings during the brief period he was employed as a truck driver in establishing his average earnings. "Given that the claimant has minimal experience as a truck driver, the only company he worked at as a truck driver indicated they would not likely rehire him, and his expressed desire not to work as a truck driver during the summer, Review Office is of the opinion that they are not representative of his probable earnings as a truck driver."
Review Office used the WCB's labour market information system to obtain wage information on truck drivers. They found that the weekly starting wage for a truck driver was $420.68 a week. It was considered that this amount was the claimant's probable earning capacity as a truck driver. Review Office calculated the claimant's average earnings as follows:
Projected annual earnings with the accident employer $13,658.07
Projected annual earnings as a truck driver $10, 937.68
Projected total annual earnings $24,595.75
Projected weekly average earnings $473.00
Review Office noted that the above assumed that the claimant was not paid for 1 week of the year. This was done to account for time the claimant would not be working between jobs with the accident employer and as a truck driver.
On March 6, 2001, the claimant's worker advisor appealed Review Office's decision and an oral hearing was convened.
Reasons
This is the case of a worker who suffered a compensable injury, which still prevents him from returning to his previous employment. His claim was accepted by the Board, for which he receives wage loss benefits.
At issue in this appeal is whether or not his average earnings have been calculated correctly. His average earnings were originally established to be $420.25 per week. On appeal, Review Office determined that they should be $473.00 per week. It is from that decision that he appealed to this Commission.
For his appeal to be successful, the panel had to determine that, had he not been injured, he would have earned more income than that determined by Review Office.
Board policy sets out measures for calculating average earnings. The most common is to use the average of twelve months earnings in the year or two prior to the compensable injury. Another approach is to calculate the worker's projected earnings for the next twelve months. This latter approach was used in this case. As the worker was going through a series of job transitions, this was appropriate.
About fourteen months prior to the compensable injury, the claimant took a voluntary lay-off from a long-term job, necessitated by a takeover and major shakeup involving his employer. After his severance and vacation pay ran out, he went on EI, enrolling in a long-distance truck-driving course. This included full time employment for 6 weeks as a long haul truck driver. Shortly after completing this course, he took a seasonal job with the accident employer, which allowed him to stay closer to home, while looking for a truck-driving job more suited to his needs. It was in this job that he suffered the compensable injury.
His average earnings were based on a combination of his wages with the accident employer and the starting wages for a truck driver as determined by the WCB's labour market information system.
In his presentation to the panel, the claimant asked that his average earning capacity be set at $48,000. This was based on either his actual earnings with the pre-March 1999 employer or what he believed he would have earned as a full-time truck driver. Evidence was presented to us that showed that such drivers can earn between $30,000 and 60,000 per year.
We could not accept the former premise, as we believe that Review Office was correct in determining that the claimant falls under clause 7(c) of WCB Policy 44.80.10.10.01 which reads as follows:
c) Workers with irregular earnings patterns and significant changes in earnings from previous year:
The initial payments will be based on the regular earnings at the time of the accident.
Review: The WCB will initiate an average earnings review effective from week 13 onwards and it will be based on probably yearly earnings capacity.
We could not fully accept the second premise either. Based on the evidence presented to us, including his testimony at the hearing, we are unable to conclude that, but for the accident, he would have been working as a long-distance driver immediately after the time of the accident. The preponderance of the evidence led us to conclude that he would likely have continued to work for the accident employer for the full term, which was to the end of September 2000. Therefore, we conclude that the first element of the probable average earning calculation should be based on the wages earned with the accident employer.
However, we do disagree with Review Office in respect of the second element of the calculation. We believe that, rather than using the labour market information to determine probable earnings, Review Office should have used actual wages paid by long-haul firms.
We were persuaded by the considerable evidence presented to us by the claimant, as well as much coverage in the public media, as to the considerable number of positions available for long-distance drivers. From this, we concluded that he would have easily been able to obtain a full-time position, once the seasonal job with the accident employer had concluded.
We note that the firm with which he trained stated that it would not likely rehire him. However, we do note that the claimant did work full time with that employer, and that the concerns stated were not in any way related to his competency as a driver.
Nonetheless, we hold that the rates paid by this firm should be used in calculating the second part of the probable average earnings. This calculation should be based on starting rates, typical earnings and the actual experience of the claimant in his brief tenure with this firm. Adjustments during the period of his continuing wage loss, per the collective agreement, should also be taken into consideration.
We note that the "Definitions" section of Policy 44.80.10.10.01 reads: "Probable yearly earning capacity is the worker's projected earnings for the next twelve months." We interpret this to mean the twelve months following the compensable injury.
Therefore, the calculations in this case should be based on the following formula:
- June 8, 2000 to September 30, 2000 -- based on the wages paid by the accident employer; and
- October 1, 2000 to June 7, 2001 -- based on the wages paid by the trucking firm with which he trained.
Accordingly, the appeal is allowed as noted above.
Panel Members
T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of May, 2001