The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 30, 2002, at the request of the claimant.

Issue

Whether or not the claimant's average earnings should be $410.19 per week.

Decision

That the claimant's average earnings should be $410.19 per week.

Decision: Unanimous

Background

On December 10, 1997, the claimant was stepping onto a floor lift pallet jack when a co-worker accidentally pushed the up button raising the lift. The platform contacted the claimant's leg causing him to fall onto his right hip, knee, back and neck. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were issued.

In March and May 2001, the claimant requested the WCB to review his average earnings at the time of his accident as he felt he had an irregular earning pattern. The WCB was asked to take into account his earnings from approximately mid 1995 to April 1996, when he was working as a manager. In a written response dated July 24, 2001, a WCB Payment Specialist indicated the following:

"Information provided by you and the accident employer indicates that you commenced working on November 12, 1996, as a parts handler. You worked in this permanent full-time position for over a year until your accident of December 10, 1997.

The board considers an irregular earnings pattern to be where a worker is in a job where he (or she) has an irregular employment pattern and is regularly in receipt of employment insurance benefits. It is clear that this was not your employment situation at the time of your accident. As such, there is no basis for calculating your average earnings on an irregular basis.

As well, there is no basis to use your 1995 or 1996 earnings in the calculation of your average earnings. Average earnings are based on employment circumstances and earning capacity at the time of an accident, not previous higher earnings with a different employer.

Therefore, I feel that your average earnings should remain as established, based on the 12 months prior to your injury at $410.19 per week gross."

On October 12, 2001 the claimant appealed the above decision to Review Office.

On October 19, 2001, a Review Officer gathered the following information from the claimant with respect his work history and the issue of average earnings:

"from 1988 to 1994 he was self-employed. For 9 to 11 months during the period from 1994 to 1995, he was in receipt of social assistance. In 1995 to 1996 he was working up north with [name] Distributors. From April 1996 to October 1996 he was again in receipt of social assistance until October 15, 1996 when he was placed by an employment program in the job with the accident employer, [name]. He recalled never being in receipt of Employment Insurance from 1988 to 1997 due to his self-employment and contract work. He would not have been eligible for employment insurance and on this basis had required social assistance. (This fact relates to the issue in that the Payment Specialist's letter of July 24, 2001 references employment insurance usage as consistent with an irregular earnings pattern, which might have been considered further.)"

After consulting with Rehabilitation & Compensation Services staff on December 5, 2001, Review Office determined on February 8, 2002 that the claimant's average earnings should be $410.19 per week.

In its decision, Review Office took into consideration board policy 44.80.10.10.01 entitled Average Earnings along with information that was provided by the claimant in his letters dated July 27, 2001 and an undated letter faxed to the WCB on October 10, 2001. Review Office also considered a letter from the claimant's employer dated October 3, 2001.

According to Review Office, there was no basis to use the claimant's earnings prior to starting work with the accident employer as a basis to establish his average earnings. It was obvious that the claimant's circumstances had changed. The skills he possessed were not in such demand that he was able to secure employment of any type, much less employment approaching his claimed earning capacity. Social services was instrumental in his returning to the workforce. The job secured for the claimant was at his earning capacity at the time of his injury and that is what his average earnings should be based upon.

Review Office noted the opinion expressed by Rehabilitation & Compensation Services that "if the accident employer confirmed that the claimant's earnings would have increased had he stayed with the company, his average earnings could be based on the anticipate earnings. The employer did not do so and the claimant's average earnings were left unchanged."

Review Office disagreed with the opinion put forth by Rehabilitation & Compensation Services. Review Office did not consider that a suggestion or promise to an employee of future promotions should be taken into account when establishing average earnings. The Workers Compensation Act (the Act) stated that there are narrow circumstances where average earnings can be affected by expected future events. Otherwise, the Act only allowed for routine indexing. Any increases a claimant would have received due to promotions, merit, longevity, cost of living adjustments, and the like are not taken into account.

On March 12, 2002, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

We note that the claimant's average earnings were established on the basis of his weekly average earnings during the 12 months prior to the compensable injury. Section 45(1) is very explicit in its language. "The board shall calculate a worker's average earnings before the accident". The Act does not contemplate "what might happen", but rather "what has happened". We find that the 12-month period employed in this case provides an accurate reflection of the claimant's average earnings. Accordingly, the claimant's average earnings should be $410.19 per week as determined by the WCB and subsequently confirmed by Review Office.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of June, 2002