The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

At the time of the injury, the worker, a full-time employee, was participating in a return to work program for a non-compensable injury. Shortly before the work injury occurred the worker accepted a part-time position which was to commence on April 4, 2005. The worker was injured on March 18, 2005 before she commenced the part-time position. The Worker's Compensation Board (WCB) calculated the worker's benefits on the basis of her part-time position. The worker argued that she should be compensated on the basis of her full-time position as she was considered a full-time employee at the time of the injury. The worker appealed to the Appeal Commission.

An appeal panel hearing was held on June 21, 2006, at the request of a worker advisor, acting on the worker's behalf. The panel discussed this appeal following the hearing on June 21, 2006.

Issue

Whether or not the worker's average earnings should be calculated at $295.47 per week.

Decision

That the worker's average earnings should be calculated for four months while in the part-time position and then the average earnings should be calculated based on full-time work.

Decision: Unanimous

Background

The worker had been a full-time employee with the accident employer and had been off work on a group insurance claim since approximately May 2003.

In January 2005, the worker commenced a graduated return to work program through her group insurer starting at two hours per shift and increasing her hours until she was back at full-time work.

While participating in the return to work program, the worker injured her right wrist on March 18, 2005. The claim was accepted by the WCB and benefits were paid to the worker effective March 21, 2005 based on a .5 position starting April 4, 2005.

On May 12, 2005, the worker advised a WCB staff representative that she was working full-time hours (7.75 hrs.) since March 7, 2005 and had worked full-time hours for March 14, 15, 17 and 18, 2005. The worker said that she was going to return to work on April 4 to a .5 position for four months in order to ease her back into the work force and then in August, she would resume her full-time employment.

On May 13, 2005, the staff representative advised the worker that the WCB would be adjusting her initial payment and would pay wage loss based on full-time hours to April 3, 2005 only and effective April 4, 2005, her payment would be at the rate that was initially established at the .5 position.

In a memo dated June 6, 2005, a WCB case manager outlined a discussion that took place with the worker regarding the concerns she had with the way her payment calculations had been made. The worker advised that even though she was on a return to work plan, her .5 position was not in effect until April 4, 2005. Her injury occurred before the effective date and therefore she felt that she should be paid at her old rate. She indicated that although she was to be working in a .5 position, she would have picked up extra shifts.

On June 7, 2005, a WCB payment specialist advised the worker of the following:

"At the time of your accident on March 18, 2005, your employer confirmed your earnings were based on a full-time position at $510.00 (gross) per week. They also confirmed that effective April 4, 2005, you had been approved for a change in position from full-time to part-time (.5) therefore decreasing your weekly (gross) income to $255.00 per week. …It is the Workers Compensation's procedure to compensate a worker based on their "actual" loss of earnings and whether it can be determined that a significant change has occurred in a worker's position or job, the benefit rate will be changed accordingly. If there had been no concrete evidence that your rate of pay would have changed, we would have continued to pay you at the initial rate for a minimum of twelve weeks at which point we would do a yearly review of your average earnings in accordance to our policy.

You mentioned that you would have been able to pick-up extra shifts. Unfortunately we have nothing to confirm this at this time."

In an appeal submission dated November 1, 2005, the worker indicated that she while she accepted a .5 position on March 14, 2005, she had continued to be a full-time employee up to the date of her injury. The reason for taking a .5 position was to ease herself back into the workforce and after three months, she planned to return to full-time duties.

Prior to considering the worker's appeal, Review Office gathered additional information from the worker, the employer and private disability manager regarding the worker's earnings. It also considered an appeal submission from a worker advisor, acting on the worker's behalf, dated December 23, 2005.

On January 17, 2005, Review Office determined that the worker's average earnings should be calculated at $295.47 per week.

Review Office applied WCB policy 44.80.10.10, Average Earnings, and determined that it was appropriate to use the probable yearly earning capacity formula in this case. Accordingly, Review Office calculated the worker's average earnings on the basis of the worker's .5 position.

Based on a review of all the available information, Review Office indicated that the worker would have averaged 38.75 hours bi-weekly (19.375 hours weekly) in her .5 position. Based on her rate of pay of $13.66, her regular weekly earnings would have been $264.66; shift premiums would have averaged $30.81 per week over a four week shift rotation, therefore the worker's total weekly average earnings should be based on $264.66 plus $30.81, which equaled $295.47. On March 2, 2006, the worker disagreed with Review Office's decision and an oral hearing was convened.

Reasons

Applicable Legislation and Policy

This appeal deals with the calculation of the worker's average earnings. Section 45 of The Workers Compensation Act (the Act) deals with the calculation of average earnings. Subsection 45(1) of the Act provides:

Calculation of average earnings
45(1) The board shall calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just, but the amount of average earnings shall not exceed the maximum annual earnings established under section 46.

In accordance with section 45, the WCB Board of Directors made WCB Policy 44.80.10.10 Average Earnings which also applies to his case. Section A 1. provides:

Formulas

The establishment of a worker's average earnings under either section 45 of the WCA as it pertains to workers injured prior to January 1, 1992 or Sections 45(1) and 45(2) of the WCA as it pertains to workers injured on or after January 1, 1992, will be governed by the same formulas. These formulas incorporate either regular earnings at the time of accident, or average yearly earnings or probably yearly earning capacity. The formula that best represents the worker's loss of earnings will be chosen.

This policy also permits the use of probable yearly earning capacity in determining average earnings in specific circumstances. This is dealt with in Schedule "B" to the policy. The WCB relied upon this schedule in determining the worker's average earnings.

Worker's Position

The worker attended the hearing with a worker advisor who made a presentation on her behalf. The worker answered questions posed by her representative and the panel.

The worker explained that she was participating in a graduated return to work (GRTW) that had commenced in January 2005. The GRTW was to end on April 2, 2005 and she was to return to her full duties on April 4, 2005. She advised that in March 2005, before the compensable injury occurred, she accepted a posting for a .5 position. The worker was asked what made her apply for a .5 position when she was already working full-time or getting up to the full-time level. The worker answered:

"Well, I just knew that I wasn't conditioned to go back like full-time right there and then and, when this posting came up, I thought like I would actually work and get conditioned, like half-time and then I was going to go back to full-time.

During my back to work program you're not allowed to do, you know, the heavy lifting or anything. I wasn't doing all that yet. So I thought I'd just buy myself some time and get conditioned and then go back to my full-time position."

The worker advised that she had not previously voluntarily reduced her hours of work. She explained her intentions in applying for the .5 position as follows:

"Well, my intentions were - like I'm saying, just to get conditioned and go back to my original full-time. According to our agreement, we can, you know, take a lower position and go back to our former one. In this case I had four months in which to do it, but I could have gone back after a month or two, whenever I felt ready."

The worker advised that she discussed accepting a reduced position at a meeting with her manager and a representative of the disability plan on March 14, 2005. She asked whether she could return to her full-time position and could work extra shifts during the four month period. The worker stated that it was always her intention to return to her full-time position.

The worker's representative referred to subsection 45(1) of Act and to WCB policy 44.80.10.10 which was applied by the WCB in calculating the worker's average earnings. The representative noted that at the time of the injury, March 18, 2005, the worker was a full-time employee. He submitted that in accordance with Act and policy, the worker's wage loss benefits should be calculated on her earnings at the time of the accident. He submitted that the Act and policy do not permit the WCB to take into account the .5 position. He argued alternatively that if the Act and policy allowed use of earnings other than the worker's earnings at the time of the injury, it should be limited to the four month period that the worker had intended to work at the .5 position.

Employer's Position

The employer was represented by an advocate. The advocate noted that the facts are not in dispute and advised that the employer was not making a formal submission.

Analysis

The panel notes that subsection 45(1) of the Act requires that the WCB calculate average earnings in a manner that is fair and just. The panel also notes that WCB policy 44.80.10.10 provides that the formula which best represents the worker's loss of earnings should be used. The panel also notes that in accordance with Schedule "B" of this policy, the WCB may calculate the worker's average earnings using the worker's probable yearly earning capacity in specified circumstances.

In applying the legislation and policy the panel finds that the worker's average earnings shall be calculated as follows:

- for the first four months, commencing April 4, 2005 the worker's average earnings should be based on the worker's earnings at the .5 position.
- thereafter, the worker's average earnings should be based on the worker's earnings at her full-time position.

The panel accepts the worker's evidence that she intended to work in the .5 position for four months and intended to return to her full-time position at the conclusion of the four months.

The panel notes that the worker raised the possibility of extra shifts and ability to return to her full time position in discussions with the disability plan staff. These discussions took place before the March 18, 2005 compensable injury. A letter from the disability plan dated January 10, 2006, confirms these discussions. This letter notes discussion regarding the worker's option to pick up extra hours while working the .5 position. The letter confirms that at a meeting on March 14, 2005 there was a discussion regarding the collective agreement provision which allows an employee a four month trial period in which the employee can return to their previous job without recourse. The panel finds this evidence is consistent with the worker's position that she intended to return to her full-time position at the end of the four month period. The panel notes, however, that while the worker inquired about extra shifts during the four month period, it is entirely speculative as to the number of additional shifts she may or may not have worked. As such, the panel has no basis for calculating an entitlement for additional shifts in that period.

The panel considers it fair and reasonable to base the worker's average earnings on the .5 position for a four month period commencing April 4, 2005. It also considers it fair and reasonable to base average earnings on the worker's full time position after this period, given the worker's expectation that she would return to a full time position within the period allowed in the collective agreement. The panel is satisfied that in accordance with WCB policy 44.80.10.10 this best represents the worker's loss of earnings.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 11th day of August, 2006