Decision #136/99 - Type: Workers Compensation
An Appeal Panel hearing was held on June 1, 1999, at the request of the claimant. The Panel discussed this appeal on June 1, 1999 and again on August 31, 1999.
Whether the claimant's average pre-accident earnings have been appropriately established at $77.02 per week; and
Whether the claimant's wage loss benefits after December 14, 1998 are to be calculated in accordance with these average (pre-accident) earnings.
That the claimant's average pre-accident earnings have been appropriately established at $77.02 per week; and
That the claimant's wage loss benefits after December 14, 1998 are to be calculated in accordance with these average (pre-accident) earnings.
On September 18, 1998, the claimant injured his back while pushing a lady in a wheelchair onto the ramp of a transportation van. The employer reported that the claimant was not yet on their payroll at the time of accident as he had been on a two day training period. Based on this information, the claimant was regarded as a "learner" under the Workers Compensation Act (the Act) and was therefore covered by the employer's coverage. The claim was accepted on the basis of an aggravation of a pre-existing condition.
On January 20, 1999, a WCB payment assessor advised the claimant of the following:
“We recently sent you a letter telling you we would be reviewing your benefit rate. This review has now been completed. Your new rate will be $66.86 a week, starting December 14, 1998.
The Workers Compensation Board does an average earnings review effective the 13th week of benefits to substantiate earnings. Effective December 14, 1998, your benefits will be based on your 1996 income tax. The calculation is as follows:
1996 EI earnings $4,005.00
TOTAL 1996 earnings $4,005.00 ÷ 52 = $77.02 per week...”.
The claimant appealed the above decision on February 17, 1999, stating that the WCB based its calculation of $66.86 per week on the “lowest period of my life long contribution to the system.” The claimant provided as evidence a copy of his Canada Pension Plan contributions from 1975 to 1994 which he felt showed that he paid the maximum contributions.
On March 5, 1999, Review Office confirmed that the claimant’s average pre-accident earnings had been appropriately established at $77.02 per week after taking into account the provisions of the Act and WCB policy. It also confirmed that wage loss benefits after December 14, 1998 were to be calculated in accordance with these average (pre-accident) earnings.
Review Office stated that the claimant had not provided evidence to confirm that a different calculation would better represent his probable loss of earnings resulting from his work related accident in September 1998. There was not enough information presented to Review Office to show that the claimant either had income from employment or employment insurance, for any consecutive 12 month period in the two years prior to his 1998 accident which would justify a higher level of average earnings. There was also not enough information presented that would show reasonable or probable expectations for income from employment at a higher level during the period of his post-accident disablement.
On June 1, 1999, an Appeal Panel hearing was conducted at the request of the claimant in connection with Review Office’s decision. The Panel in turn requested that additional information be obtained from Revenue Canada with respect to the claimant’s income tax returns, as well as those of his wife’s and brother-in-law’s for the years 1996 and 1997 in regard to a business purportedly employing the claimant. In a letter, dated June 8, 1999, the claimant was requested to have his wife and brother-in-law sign an authorization form which would allow the Appeal Commission access to the above information from Revenue Canada. The letter stated, “Please note that the attached form must be returned to the Appeal Commission within 30 days from receipt of this letter. If not, the Appeal Panel hearing your case will render its decision with the information already on file.” As the claimant did not return the authorizations to the Appeal Commission within the 30 day time period the Appeal Panel met on August 31, 1999, to render its final decision based on the evidence already on file.
The claimant presented no evidence to suggest that his pre-accident earnings had been inappropriately established at $77.02 per week. He had been extended the opportunity to provide the Panel with additional financial information which would substantiate his contention of higher average pre-accident earnings. However, nothing was furnished. Therefore, based on the evidence on file, we find that the claimant's pre-accident earnings had been appropriately established by the WCB.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of September, 1999