Decision #160/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 10, 2004, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker's wage loss benefits should be based on the wages of an "A" gasfitter; and

Whether or not the worker should be supported in a self-employment venture.

Decision

That the worker's wage loss benefits should be based on the wages of an "A" gasfitter; and

That the worker should not be supported in a self-employment venture.

Decision: Unanimous

Background

On February 28, 1996, the worker sustained compensable soft tissue injuries to his left elbow and forearm during the course of his employment as a gasfitter. As a result of his 1996 injuries, the worker has permanent restrictions and was provided with vocational rehabilitation assistance by the Workers Compensation Board (WCB).

On October 2, 1998, the case was considered by Review Office at the worker's request to determine whether or not the WCB had correctly calculated his wage loss benefit rate. Taking into consideration Board Policy 44.80.30.30, Prospective Earnings - Apprentices and Youthful Workers, along with information that was obtained from the accident employer concerning the wages of an "A" gasfitter (memo dated October 8, 1998), Review Office found that the worker's average earnings had been incorrectly established. Review Office determined that the worker's average earnings would be rated at $22.00 per hour effective July 11, 1997 which was the earliest date that the worker could have received his "A" gasfitters license.

In September 2001, the claimant submitted a business proposal to the WCB to "provide maintenance and upkeep to residential yards and homes, as well as small commercial businesses." In a response dated September 25, 2001, the vocational rehabilitation consultant (VRC) advised the worker that the depth of the information that he provided in his business plan was insufficient. The VRC advised the worker that the WCB required an in-depth business proposal including market research, projected income statements, projected costs including start up costs and ongoing day to day costs of running a business.

On June 19, 2003, an Appeal Panel hearing took place to consider the issue of whether or not the worker was entitled to full wage loss benefits. On July 29, 2003, the Panel determined from the evidence on file that the worker was not entitled to receive full wage loss benefits. The Panel suggested to the worker that he take the necessary steps to have his criminal record sealed. Once this task was completed, the Panel recommended that the WCB and the worker once again explore the pharmacy technician job opportunity.

In April 2004, the claimant met with a WCB manager to discuss certain aspects of his claim. In a letter to the worker dated April 21, 2004, the manager stated, in part, the following:

"I have reviewed our policy related to Apprenticeship and have determined that you would have been considered an Apprentice within and (sic) Occupation as defined in our policy. This would entitle you to you have your wage loss benefits indexed up to the level that your employer would have paid you had you not been injured and you had an opportunity to complete your "A Ticket" in gas fitting.

In 1998 it was determined that you would have completed your ticket and would have been paid by the employer $22/hour at that time. We appropriately indexed your pre-accident wages upwards from 1996 to 1998 to the "A ticket" rate then indexed your pre-accident wage by our usual factors thereafter. The application of these index levels is consistent with our legislation and policy. Therefore no adjustment to your pre-accident rate is appropriate at this time."

On June 29, 2004, the case was again considered by Review Office to address four issues that were brought forward by the worker. In particular, one issue that Review Office was asked to consider was whether or not the worker's wage loss benefits should be based on the current wages of an "A" gasfitter. Review Office stated that it had addressed this issue in a previous Review Office decision dated October 2, 1998 and stated, "…the claimant's average earnings (on which his wage loss benefits are based) were not correctly calculated and provided direction on how this should be done. Review Office's directions were followed and it is considered that the claimant's average earnings are now correct. The current earnings of "A" gasfitters are in no way germane to the claimant's average earnings and, by extension, his wage loss benefit entitlement."

The worker also asked Review Office to support him with respect to a self-employment venture. Review Office denied the appeal as the worker did not provide a comprehensive self-employment proposal which the WCB could appropriately evaluate and make a reasoned decision as to whether or not it was a viable one. Globally speaking, Review Office stated that self-employment was not a suitable vocational rehabilitation option. In July 2004, the worker disagreed with Review Office on both of the above issues and an oral hearing was arranged.

Reasons

We were asked to consider two issues on this appeal. The first issue was whether the worker's wage loss benefits should be based on the wages of an "A" gasfitter. The second issue was whether the worker should be supported in a self-employment venture.

With respect to the first issue, the worker clarified at the hearing that he is not seeking to be paid wage loss benefits at the current wages of an "A" gasfitter. Rather he is seeking to have his deemed wages for average earnings purposes based on the wages of an "A" gasfitter on the date that he would have been eligible to become an "A" gasfitter, July 11, 1997. For the worker's appeal to be successful we must find that the worker's wage loss rate has not been properly calculated. We did find that the worker's wage loss rate had not been properly calculated and that an adjustment is required.

For the worker to be successful on the second issue we must find that the self-employment venture will help the worker to achieve a return to sustainable employment and that self-employment is the preferred cost-effective measure to allow the injured worker to reach maximum earnings. We were not able to find a basis to support the worker's self-employment venture.

Legislation and Policy

The worker's wage loss benefits have been calculated pursuant to subsection 45(3) of The Worker's Compensation Act (the "Act"). This subsection allows the WCB to adjust a worker's wage loss benefits in cases where the worker's average earnings do not fairly represent the worker's earning capacity. To assist with applying this provision, the Board of Directors has made Board Policy 44.80.30.30, Prospective Earnings - Apprentices and Youthful Workers. This policy has been applied in the calculation of the worker's wage loss benefits.

Self-employment is a form of vocational rehabilitation. Subsection 27(20) provides the WCB with the authority to expend funds on vocational rehabilitation. The Board of Directors has made two policies which address the issue of self-employment: Board Policy 43.00, Vocational Rehabilitation, and Board Policy 44.101, Financial Assistance for Self-Employment. Self-employment plans must satisfy the requirements of these policies.

Worker's Wage Rate

The worker's wage rate was originally reviewed by Review office on October 2, 1998. At that time the Review Office determined that although the worker was not an apprentice under The Apprenticeship & Trades Qualifications Act, the steps required to obtain a gasfitters license (as set out in The Gas and Oil Burner Act) are the equivalent to an apprenticeship program. Review Office decided that Board Policy 44.80.30.30 was applicable.

In applying the policy and adjusting the worker's average earnings Review Office relied upon information provided by the accident employer regarding the wages paid to an "A" gasfitter. The employer said it would pay the worker $22.00 per hour when he received his "A" gasfitter license. Review Office deemed the worker's average earnings at $22.00 per hour effective July 11, 1997, which is the earliest date that the worker could have received his "A" gasfitter license. The worker did not dispute the choice of July 11, 1997 as the appropriate date to adjust his average earnings.

The worker's appeal relates to the hourly amount that Review Office used. In his letter of appeal, the worker disputed the employer's information about the wage of an "A" gasfitter. He noted that the employer paid an "A" gasfitter $30.00 per hour in 1997. At the hearing the worker did not seek a deemed wage rate of $30.00 per hour. He referred to a memorandum prepared by the Review Officer on October 8, 1998. In the memo the Review Officer reviewed the status of an "A" gasfitter. After surveying the various statutes dealing with apprenticeships in parallel occupations, he noted "From a salary perspective, gasfitters are not specifically mentioned in any of the acts but they are generally paid in accordance with related trades." The Review Officer then reviewed the wages of other trades and noted that journeyman plumbers and steamfitters are paid a minimum of $24.50 per hour.

The worker asked that his average earnings be adjusted in accordance with the information contained in this memorandum. We find the information provided by the Review Officer very helpful. We accept the Review Officer's evidence that generally gasfitters are paid in accordance with other trades. We therefore consider that it is reasonable to deem the worker's average earnings at $24.50 per hour effective July 11, 1997.

The worker's appeal on this issue is allowed.

Self-employment Venture

At the hearing the worker provided details of his current self-employment venture which involves offering furnace cleaning services to residential property owners. He has registered a company name and printed and distributed promotional literature to home owners. He has also bought equipment for use in furnace cleaning. Unfortunately the business has not been profitable to date.

The worker does not have a detailed business plan. When asked for a plan he referred to a proposal dated September 20, 2001 for a previous self-employment venture. It contained none of the information needed to demonstrate that this is a viable plan. He was not able to provide any expense or income projections on the furnace cleaning venture.

We are unable to support the worker's self-employment venture. The information provided by the worker is not sufficient to permit an assessment of the venture to determine whether it is viable. No information was provided to demonstrate that self-employment is a cost effective measure.

We also note that the worker had just received a pardon with respect to a previous criminal conviction. This had been a barrier to a number of retraining programs being examined by the worker and the WCB. We note that it is now open for the WCB and the worker to consider a vocational rehabilitation plan focusing on retraining, which is a higher priority on the vocational rehabilitation hierarchy of objectives than self-employment ventures.

The worker's appeal on this issue is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2004

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