The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable legislation

This appeal deals with the calculation of workers’ average earnings. Section 45 of the Act deals with the calculation of average earnings and 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

The worker provided a written submission to the Appeal Commission. The worker explained that she worked hard and paid her own way to become a long haul driver. For many reasons, truck driving was an ideal job for her and would give her the opportunity to earn enough income to meet her monthly expenses. A number of examples of the earning potential of a long haul driver were provided. The worker requested that she be allowed at least $53,000 per year.

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 is satisfied that the average earnings of $832.54 per week from March 14, 2007 to May 15, 2007 and $881.49 per week effective May 16, 2007, fairly reflects the worker’s loss of earnings. Generally speaking, WCB policies tend to look backwards at past performance to establish a worker’s average earnings. There are very limited circumstances where prospective earnings may be used to establish the worker’s rate. In the worker’s case, Review Office already adopted a prospective approach and from May 16, 2007 forward, the worker was given the benefit of the increased mileage rate she would have earned had she completed her probationary period.

The panel also notes information on the file which indicates that the weekly average earnings rate of $832.54 is equivalent to an annual salary of $43,292.08 and that according to the employer, the average wage for a truck driver is $40,000. Given that the worker had only a one month work history with the employer and that she is being compensated at a rate which may be greater than the average wage of others in her field, the panel is of the opinion that the worker’s average earnings are correctly established. While the worker may have had the potential to earn higher income as a long haul driver, unfortunately she did not work in the position long enough to establish that this income would indeed have been earned by her.