Decision #85/01 - Type: Workers Compensation
Preamble
A non-oral file review was held on June 8, 2001, at the request of the claimant.
Issue
Whether or not the worker's average earnings have been calculated correctly.
Decision
That the worker's average earnings have been calculated correctly.
Background
While working as a construction labourer in July 1997 the claimant injured his back and chest while dismantling metal beams. The claim was accepted by the Workers Compensation Board (WCB) and payment of benefits commenced.
On November 13, 1996, a payment assessor informed the claimant that his weekly compensation rate would be changed to $103.93 effective October 19, 1996. The new rate was 90% of net income and was based on the claimant's 1994 and 1995 employment related taxable income. This decision was later confirmed to the claimant in a letter dated January 28, 1997. In December 2000, the claimant appealed the decision to Review Office.
On February 9, 2000, Review Office made the determination that the claimant's average earnings should be $139.58 a week. In this regard, Review Office stated the following:
- ".the claimant's average earnings were based on a two year average. Doing so was not consistent with Policy 48.80.10.10.01 as it provides for average earnings to be based on "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." Practice is to use the highest of the two years unless there is a reason to do otherwise. Review Office considers that there is not. It follows that the claimant's average earnings should be $139.58 ($7258 52)."
In April 2001, the claimant appealed Review Office's decision and a non-oral file review was held to consider the appeal.
Reasons
This case concerns a worker who was injured on a construction site. His accident was accepted by the board as compensable. He continues to receive wage loss benefits as a result.
At issue in this appeal is whether or not his average earnings have been calculated correctly. The initial calculation was made by the Adjudicator. The claimant appealed that to the Review Office, which allowed his appeal and increased the weekly average. It is from that decision that he appeals to this commission.
Pursuant to WCB Policy 44.80.10.10.01, from week 13 onwards, average earnings for wage loss benefits are based on average yearly earnings. Average yearly earnings are defined as "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."
For this appeal to succeed, the panel must determine that his yearly earnings in a twelve month period in the two years prior to his compensable injury were higher than the amount used by the Review Office to determine his average earnings.
We were unable to make such a determination.
There was no evidence available to indicate that the claimant had higher earnings than the amounts considered by the board. The board based its calculations on the claimant's income tax returns for the previous two tax years. The total income for the earlier year was used as it was higher than the other.
The policy will allow for the use of a twelve-month period that overlaps two taxation years, where warranted. Such was not the case here. In the two-year period, prior to the accident, the claimant had an irregular pattern of earnings. There was no sustained period of employment and higher earnings.
For these reasons, we were unable to find any support for the premise that the average earnings should be higher. Thus, his average earnings have been calculated correctly.
Accordingly, the decision of the Review Office is upheld and the appeal is dismissed.
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 25th day of June, 2001