The Appeal CommissionThe Workers Compensation Act of Manitoba

Worker’s Position

The worker was represented by an advocate who provided written submissions to the Appeal Commission on behalf of the worker dated January 12, 2007 and December 6, 2006.

The representative noted that the worker had recently returned to work in his trade as carpenter and was working as a carpenter at the time of the injury. He noted that the worker’s wage loss benefits were originally based on his earnings as a carpenter. He noted that the worker’s union provided a letter indicating there was zero unemployment in 2006 for its members. He also noted that the worker’s financial institution provided a letter indicating that the worker had consolidated his outstanding obligations on the basis that he was returning to full time work as a carpenter. He indicated that the worker had intended to return to full-time work as a carpenter.

The representative submitted that after being absent from working as a carpenter for a number of years and returning when business was booming, the worker is being penalized.

The representative asked that the panel apply subsection 45(4) of the Act. He submitted that “There was a significant change in circumstances that required [the worker] to re-enter the workforce as a carpenter. The average earning capacity included his prior partnership in the music business, however, that income was much lower that (sic) minimum wage and welfare rates and that don’t (sic) represent a fair assessment of his earning capacity when working in his skilled occupation.”

The representative stated that the inclusion of his pre-accident income results in an unfair representation of what the worker’s future earnings would be.

In the submissions, the representative addressed other issues relating to the accident, the worker’s medical condition and the WCB’s management of the claim. These issues were not before the Appeal Commission and accordingly the panel did not address them.

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. There are several sections of the Act which are directly applicable to this appeal.

Subsection 39(1) provides that when an injured worker sustains a loss of earning capacity, wage loss benefits are payable in accordance with section 40.

Subsection 40(1) provides that the loss of earning capacity of a worker is the difference between:

(a) the worker's net average earnings before the accident; and

(b) the net average amount that the board determines the worker is capable of earning after the accident.

Subsection 45(1) provides that “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...”

WCB Policy 44.80.10.10 (Average Earnings) provides that in calculating the worker’s average earnings under section 45, the WCB will use formulas that “…incorporate either regular earnings at the time of accident, or average yearly earnings or probable yearly earning capacity. The formula that best represents the worker’s loss of earnings will be chosen.”

Analysis

The issue before the panel was whether the worker’s average earnings should be $178.79 per week effective January 27, 2005. For the appeal to succeed, the panel must find that the WCB has improperly calculated the worker’s average earnings. After reviewing the file and considering the details of the worker’s employment history and income, the panel finds that the worker’s average earnings should be $178.79.

WCB Policy 44.80.10.10 provides under the definition of Average Yearly Earnings that “To determine a worker’s true loss of earnings, the WCB will generally use documentable employment data from any consecutive 12 month period during the one or two years before the compensable injury. If the WCB determines that this calculation does not produce an accurate reflection of a worker’s loss of earnings, it will generally use documentable employment data from a 12 month period during, or an average of, a longer period of up to five years.”

The panel finds that WCB Policy 44.80.10.10 has been properly applied to the calculation in this case. A review of the worker’s prior income tax returns indicated little income from employment for the years prior to the compensable injury. A review of the worker’s employment history indicates that he did not regularly work as a carpenter in the years prior to his compensable injury. In the 12 months immediately before the compensable injury the worker had worked for a very short period as a carpenter. The panel acknowledges that the worker was involved in a business venture but the tax returns do not demonstrate any significant income earned as a result of the business.

The panel notes that the WCB considered documented employment data for the two year period before the compensable injury and that the highest earnings were used to calculate the worker’s average earnings.

The panel has considered the submission that the worker would have worked full time as a carpenter, but for the accident, and that his average earnings should be based upon what the worker might have earned. The panel finds no basis for considering the worker’s possible future earnings. Rather, in accordance with the Act, the worker’s average earnings are properly based upon the worker’s income before the accident.