The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review took place on June 6, 2005, at the worker's request.

Issue

Whether or not the worker's net average earnings have been correctly calculated.

Decision

That the worker's net average earnings have been correctly calculated.

Decision: Unanimous

Background

In February 1996, the worker injured his left elbow and forearm as a result of a work related injury. The claim was accepted by the Workers Compensation Board (WCB) and benefits and services were paid to the worker.

In an Appeal Commission decision dated November 24, 2004, it was determined that the worker's wage loss rate had not been properly established and that an adjustment was required. It was determined that the worker's average earnings were $24.50 per hour effective July 11, 1997.

In accordance with the Appeal Commission's decision, a WCB payment assessor advised the worker on January 14, 2005, that "…wage loss benefits have been recalculated for the period July 11, 1997 to January 1, 2005. The wage loss benefits were adjusted to reflect that your average earnings effective July 11, 1997 should have been based on earnings of $980.00 per week." On January 17, 2005, the worker appealed the amount of his retroactive entitlement and submitted new information from Canada Revenue Agency for consideration.

In a decision dated March 17, 2005, Review Office confirmed that the worker's net average earnings had been correctly calculated based on subsection 40(4) of The Worker's Compensation Act (the Act). In April 2005, the worker disagreed with Review Office's decision and a non-oral file review was held.

Reasons

We were asked to determine whether the worker's net average earnings have been correctly calculated. We found that the worker's net average earnings were correctly calculated and accordingly have declined the appeal.

In a written submission dated May 16, 2005, the worker asked the Appeal Commission to independently calculate his weekly cheque, taking into consideration the relevant tax tables for the relevant years. He indicated that errors had been made in calculating the amounts, and asked that the amounts be calculated manually.

Net average earnings are calculated in accordance with the Act and policy of the Board of Directors of the WCB.

Subsections 40(3) and (4) of the Act provide for the calculation of net average earnings. We note that subsection 40(4) provides that the schedule or procedure selected by the board for determining probable deductions is final and conclusive. In accordance with this subsection the board has selected to use a computer based program for calculating the net average earnings of all workers. While the WCB wage loss model uses income tax tables or information from the Canada Revenue Agency, the model does not replicate the tax system.

The Board of Directors have made Policy 44.80.10.40.01, 90% of Net Average Earnings, which is also applicable to the calculation of net average earnings in this case.

We find that the calculations are made in accordance with the Act and policy noted, using the schedule and procedures selected by the board.

The appeal is declined.

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 14th day of July, 2005