Decision #81/08 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s average earnings were correctly calculated with respect to his two claims filed in 2001 for accidents that occurred on January 24, 2001 and April 28, 2001. It was agreed by both primary adjudication and Review Office of the Workers Compensation Board (“WCB”) that the worker’s average earnings were correctly calculated. The worker disagreed with the decision based on the premise that the same wage rate that was used in his 2000 claim should be utilized in his claims filed in 2001. A worker advisor, on the worker’s behalf, then filed an appeal with the Appeal Commission and a file review was held on May 27, 2008.Issue
Whether or not the worker’s average earnings have been correctly calculated in respect to his claims for accidents occurring January 24, 2001 and April 28, 2001.Decision
That the worker’s average earnings have been correctly calculated in respect to his claims for accidents occurring January 24, 2001 and April 28, 2001.Decision: Unanimous
Background
The worker was first hired by the accident employer as a truck driver on May 9, 2000 and was laid off on May 30, 2000 due to a seasonal shortage. Between June 7 to October 6, 2000, the worker was employed by another company as a gravel truck driver when he was laid off. He was then rehired by the accident employer as a full time employee effective October 11, 2000.
On October 31, 2000, the worker sustained chemical burns to his right ear, eye and face when an ammonia spill occurred during the course of his employment as a long haul truck driver. The WCB accepted the claim based on the physical facial burns and the worker was paid wage loss benefits until his return to work on November 13, 2000. The worker later claimed that he suffered from chronic anxiety which he related to the October 31, 2000 compensable injury. The worker’s claim for a psychological injury related to the October 31, 2000 accident was denied by primary adjudication, Review Office and by the Appeal Commission.
On February 9, 2005, the worker filed a new claim with the WCB for anxiety disorder and stress that he related to two specific accidents. The first accident occurred on January 22, 2001. The worker was driving on icy road conditions when his truck and trailer veered into the ditch. The second incident took place on April 28, 2001 when the worker struck and killed a deer while driving on a highway. The worker’s claim for psychological conditions related to these two incidents were denied by primary adjudication and Review Office but were accepted as being work related by the Appeal Commission on September 7, 2007. The case was then referred back to primary adjudication to calculate the worker’s entitlement to wage loss benefits.
In a decision dated October 29, 2007, primary adjudication determined that the worker was entitled to medical aid benefits but was not entitled to wage loss benefits. Following the January 2001 and April 2001 accidents the worker had continued to work until February 19, 2002 when he was laid off due to a shortage of work. The worker never returned to work and was subsequently terminated from his employment on June 5, 2002. It was the opinion of primary adjudication that the worker’s loss of earning capacity was due to the lay off and the subsequent termination of employment and not the worker’s compensable psychological condition. This decision was appealed by a worker advisor. It was argued that the worker was entitled to wage loss benefits commencing April 4, 2002 when his doctor took him off work due to his compensable condition.
On November 21, 2007, Review Office determined that the worker was entitled to wage loss benefits beyond April 3, 2002 on the grounds that his loss of earning capacity was due to his compensable injury. The worker was then paid retroactive wage loss benefits which covered the period April 4, 2002 to March 31, 2004 inclusive. The WCB then requested and obtained additional financial information for the period April 2004 onwards.
By letter dated January 7, 2008, the WCB advised the worker that his current indexed full wage loss benefit rate was determined to be $352.95 and that this was based on the worker’s pre-injury earnings of $507.04 per week. The $507.04 rate was calculated using the worker’s 2000 T4 earnings of $16,296 and dividing it by the number of weeks he worked in 2000 (32.14 weeks). The $507.04 had been indexed to the present resulting in a current indexed pre-injury wage of $576.33. Following WCB policy 44.80.10.10, the WCB determined that the most accurate indicator of the worker’s loss of earnings for the claim was his 2000 reported T4 earnings.
In a submission to Review Office dated January 10, 2008, a worker advisor argued that the worker should be entitled to the same weekly rate as determined by the WCB for the October 31, 2000 compensable injury and that the worker should be compensated for the time period between January 24, 2001 and April 3, 2002. As the second issue had not been addressed by primary adjudication, that aspect of the case was referred back to the department for consideration.
In a decision dated January 18, 2008, it was confirmed by the WCB case manager that the benefit rate used in the worker’s 2000 claim was not applicable to his 2001 claim. He remained of the view that the benefit rate on the 2001 claim was appropriately based on pre-accident earnings of $507.04. The case manager noted that the worker’s loss of earnings after January 24, 2001 was attributable to the worker’s psychological conditions and therefore he was entitled to partial wage loss benefits as of January 24, 2001. He stated the Appeal Commission did not indicate which of the two claims (January 2001 or April 2001), if either, was more responsible for his psychological conditions and the Commission appeared to have considered that both of these claims contributed to his psychological conditions. On January 22, 2008, the worker advisor appealed the case manager’s decision to Review Office.
On February 28, 2008, Review Office determined that the worker’s pre-accident wage rate was correctly calculated for the worker’s January 2001 claim and was in accordance with WCB Policy 44.80.10.10. Review Office noted that the WCB accepted that the worker had no earnings from January to May 8, 2000. Therefore, when the WCB used the worker’s T4 earnings for the year 2000, rather than dividing those earnings by a 52 week period, it only included the 32.14 weeks actually worked by the worker in 2000. The following calculations were used to obtain the worker’s pre-accident wage rate:
“Year 2000 T-4 earnings $16,296
Divided by the number of weeks from May 9
to December 31, 2000 minus claim-related time loss: 32.14
Average weekly pre-accident earnings: $507.04”
Review Office was satisfied that primary adjudication used the best available information to obtain a reasonable approximation of the worker’s average earnings.
Review Office further determined that the worker’s pre-accident wage rate was correctly calculated for his April 2001 claim. It relied on the same reasoning which was applied to the decision with respect to the worker’s January 2001 claim. Review Office noted that the file contained no information to confirm the worker’s actual earnings from January 1, 2001 to April 28, 2001. The information used by the WCB to establish the worker’s pre-accident wage rate in the January 2001 claim was similarly applicable to this claim and was appropriate to use. It did note that the worker’s average weekly earnings for 2001were $502.08 which was similar to the average earnings derived by the WCB, that being $507.04 per week.
On March 11, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable legislation
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.
WCB Policy 44.80.10.10 Average Earnings (the “Policy”) deals with the calculation of wage loss benefits and states as follows:
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 the accident, or average yearly earnings or probable yearly earning capacity. The formula that best represents the worker’s loss of earnings will be chosen.
Thus the Policy identifies three different formulas – regular, average and probable – which may be used to calculate a worker’s wage loss benefits. Definitions for the three formulas are provided in the Policy as follows:
Regular Earnings:
Regular earnings are the amount of earnings a worker normally receives as remuneration in the occupation(s) in which he or she was employed at the time of injury. Regular earnings are based on the normal payment schedule (daily, weekly, monthly, annually, etc.) converted to a weekly amount. Earnings from concurrent employment (whether in a covered or non-covered industry) which are reduced or eliminated due to an accident in a covered industry are included in regular earnings.
Regular earnings do not normally include overtime, special reimbursements for employment expenses or bonuses that are not regularly paid.
Average Yearly Earnings:
Average yearly earnings include any remuneration that the worker received as a result of employment or employment-insurance benefits. 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 accident. If the WCB determines that this calculation does not produce an accurate reflection of the 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.
Probable Yearly Earning Capacity:
Probable yearly earning capacity is the worker’s projected earnings for the next twelve months. It is based on the worker’s regular earnings at the time of accident as applied to the worker’s established work pattern. Consistent with Section 45 of the WCA (1992), the probable yearly earning capacity must be based on the worker’s earnings before the accident, but may be based on “income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just.”
Worker’s position
A written submission was prepared by a worker advisor on the worker’s behalf. The submission argues that the formula for “Probable Yearly Earnings” should have been applied to determine the worker’s wage rate, rather than “Average Yearly Earnings”. It notes that under Manitoba Job Futures - Truck Driver NOC, the earnings of a truck driver start at $27,490 per annum, average at $37,900, and are $65,000 at the high end. The argument is that prior to the January 24, 2001 incident, the worker was earning a wage rate equivalent to that of an average earning long distance truck driver, and that $37,900 should be used as the worker’s probable yearly earnings. The worker was hired as a full time employee by his accident employer on October 11, 2000, then sustained injury to his face on October 31, 2000, for which he required two weeks of recovery. He returned to work on November 13, 2000 and received additional training on pneumatic trailers and truck trains. He then resumed his long distance hauling duties at the beginning of January 2001. At the time of the January 24, 2001 incident, he was participating in regular long distance hauls and earning a wage rate equivalent to that of an average earning long distance truck driver, which is $37,900. Following the January 24, 2001 incident, his symptoms of fear and anxiety affected his ability to go on long distance hauls and perform the hours of duty required by an average earning long distance truck driver. Were it not for the January 24, 2001 and April 28, 2001 incidents, he would have continued to earn the wage rate he was earning prior to the January 24, 2001 incident.
Analysis
As noted earlier, the Policy deals with the calculation of wage loss benefits. Three different formulas - regular earnings, average yearly and probable yearly - may be used to calculate a worker's wage loss benefits. The key is to use the method that best represents the worker’s loss of earnings, in a manner which is “fair and just”, as required by subsection 45(1).
In applying the legislation and policy, the panel finds that the worker’s average earnings were properly established using the worker’s 2000 earnings as reported in his T-4 for 2000, divided by the number of weeks actually worked in 2000. While we recognize that the worker had taken steps in late 2000 and early 2001 to upgrade and train on a number of other pieces of equipment, the panel does not feel that the worker had been employed for a sufficient period of time so to establish that he had a probable earning capacity of an average long distance truck driver. The definition of “Probable Yearly Earning Capacity” under the Policy bases earnings on the worker’s regular earnings at the time of accident as applied to “the worker’s established work pattern.” In the panel’s opinion, the worker did not work long enough as a long distance truck driver to establish a work pattern which would warrant using the Probable Yearly Earning Capacity formula for calculating the wage loss benefits.
The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of July, 2008