Decision #162/99 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on November 15, 1999, at the request of the claimant.
Issue
Whether or not the claimant's average earnings have been correctly established.
Decision
That the claimant's average earnings have been correctly established.
Background
On July 30, 1998, the claimant sustained a compensable left knee injury while employed with a concrete and drain company. At the time of injury, the claimant was concurrently employed with another company where he primarily worked weekends. The claimant's average earnings from both employers was calculated to be $562.00 gross and his compensation rate was calculated at $363.77.
In subsequent correspondence, dated November 25, 1998, a Workers Compensation Board (WCB) payment assessor advised the claimant that his new benefit rate effective October 23, 1998, would be $152.68 a week. The payment assessor explained that the WCB did an average earnings review on the 13th week of paying benefits to substantiate the claimant's earnings. The accident employer advised the WCB that the claimant was hired on a trial basis and was subject to lay off. The other employer advised the WCB that the claimant was subject to lay off and was laid off effective August 30, 1998. As a result of these two situations, the claimant's benefit rate could not continue at $363.77 per week
In late November 1998, the claimant appealed the above decision to Review Office. The claimant was of the view that he was entitled to 55 hours a week from the accident employer and 16 hours a week with the concurrent employer.
On December 11, 1998, Review Office confirmed that the claimant's average earnings had been correctly established. Review Office stated that the claimant was injured the first day on the job with his new employer. The claimant also had concurrent earnings with a second employer and these rates were taken into account in the initial calculation. Income tax returns for the years 1996 and 1997 were obtained. The calendar year 1996 was utilized because it produced a higher earnings figure for the worker.
Review Office stated that the payment assessor could have utilized the 1997 earnings or a combination of the two calendar years, however, this would have resulted in a lower average earnings figure. Review Office indicated that the worker requested that he be allowed benefits based on an average of 55 hours of employment with the accident employer and 16 hours with the concurrent employer. It was clear to Review Office that the claimant would not have worked such hours on an annual basis and that the calculation of the average earnings was correct.
In August 1999, the claimant appealed Review Office's decision and an oral hearing took place on October 12, 1999. The hearing was adjourned sine die as the claimant requested additional time to prepare his case. On November 4, 1999, the claimant telephoned the Appeal Commission indicating that he was ready to proceed. A hearing was then arranged for November 15, 1999.
Reasons
As the background notes indicate, the initial hearing was adjourned in order to allow the claimant an opportunity to provide the Panel with additional evidence that might possibly substantiate his contention of higher average earnings. When the hearing was reconvened, the claimant presented absolutely no evidence to suggest his pre-accident average earnings had not been correctly established. We find that the claimant's pre-accident average earnings were correctly determined in accordance with the provisions of the Workers Compensation Act and with the policies of the WCB. Accordingly, the claimant's appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding Officer
E. Krosney, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of November, 1999