The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

When a worker receives wage loss benefits for a loss of earning capacity resulting from a workplace accident, the worker’s average earnings are used to calculate the benefit rate. Subsection 45(1) of the Act addresses the calculation of average earnings:

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, Benefits Administration – Wage Loss, Average Earnings (the “Average Earnings Policy”) outlines the processes used by the WCB to determine a worker’s average earnings.

Subsection 45(4) allows the WCB to adjust average earnings from time to time when the WCB is satisfied that the worker's average earnings before the accident do not fairly represent his or her earning capacity because of the worker's age. It reads as follows:

Adjustment of earning capacity based on age

45(4) Where a worker sustains a long-term loss of earning capacity, and the board is satisfied that because of the worker's age, his or her average earnings before the accident do not fairly represent the worker's earning capacity, the board may adjust wage loss benefits from time to time by deeming the worker's average earnings to be an amount that, in its opinion, reflects the probable earning capacity of the worker, which amount shall not exceed the average of the industrial average wage for each of the 12 months before July 1 in the preceding year.

WCB Policy 44.80.30.30, Benefits Administration – Wage Loss, Prospective Earnings - Apprentices and Youthful Workers (the “Prospective Earnings Policy”) sets out the guidelines as to when average earnings will be adjusted under section 45(3) of the Act (apprentices) or section 45(4) of the Act (youthful workers).

Worker’s submission:

The worker was self-represented in this appeal. A summary of the worker's submission as contained in the Appeal of Claims Decision form is set out above. In his appeal, the worker asks the panel to direct the adjustment of his average earnings pursuant to section 45(4) of the Act on account of his age. At the time of the accident, he was 28 years old and since the time of the accident, the average wage of automobile painters in Manitoba has significantly increased. It is submitted that there is no "industrial average wage" reported for automobile painters alone, but the panel was referred to a study which contained statistics for average wages earned by body repairers and painters in the automobile repair industry in Manitoba. The worker noted that his current benefit rate based on his pre-accident earnings was substantially less than what he could be earning as an automotive refinisher in 2010. The worker submits that it would be reasonable for his wage loss benefits to be adjusted to reflect the current range of earnings described in the study.

The panel also invited the worker to make a further submission on the issue of whether or not his pre-accident gross weekly wage should be adjusted. By email dated October 3, 2011, the worker provided additional written argument to the panel.

At the outset, the panel notes that in his October 3, 2011 submission, the worker states: "If the panel is going to consider a decision detrimental to my interest, under the premise of procedural fairness, I believe my rights would be affected seriously enough to warrant an oral hearing before making the decision." The worker is essentially asking for an oral hearing in the event that the panel is inclined to decide against his interests.

The panel does not agree that a potentially unfavorable decision is the test for whether or not an oral hearing will be held. The Appeal Commission Rules of Procedure, Man. Reg. 279/91 provide that a hearing may be oral or written. Subsection 5(2) provides as follows:

Type of hearing

5(2) The Chief Appeal Commissioner shall determine the type of hearing that a matter is to receive before the appeal commission, but the panel may change the type of hearing where it determines at the hearing that another type of hearing is necessary or advisable for the proper disposition of the matter.

In the panel's opinion, proper disposition of an appeal requires that the evidence necessary to make the decision be brought forward and that the parties be given a fair opportunity to be heard. In the present case, the worker requested that the appeal be heard by way of file review and the Chief Appeal Commissioner agreed that this would be the appropriate method of appeal. After our initial file review of the matter, the panel invited the worker to provide further written argument, which the worker did provide. In the panel's opinion, the worker has been afforded sufficient time and opportunity to state his case and bring forward all relevant evidence. We do not feel that an oral hearing is necessary or advisable for the proper disposition of this matter. We are therefore prepared to proceed to determine the appeal without an oral hearing. It is to be noted that the panel has made this determination regarding method of hearing prior to giving any further consideration to the main issues before us, and prior to rendering our decision on the appeal.

The worker's October 3, 2011 submission addressed two issues. The first issue was whether or not 18 or 19 weeks should have been used to determine the worker's pre-accident gross weekly wage. The worker stated that although he disagreed with the formula used for determining his pre-accident gross weekly wage, he submitted that 18 weeks was correct. His first pay period was a 2 week pay period, not 3 weeks. The pay period went from 25/10/1999 to 5/11/1999. Pay day was on 12/11/1999.

The second issue was whether or not the formula used to determine the worker's pre-accident gross weekly wage was the correct formula for determining his average earning potential. Under this heading, the worker submitted that any amount less than $1,753.75 earned bi-weekly should not have been considered in the calculations because those amounts did not reflect the worker's capabilities and were not regular earnings. Due to the health effects caused by his occupational disease, the worker was hampered in his production and therefore his earnings for certain weeks did not reflect his true earning capacity. The worker submitted that only 10 particular weeks gave a fair representation of his pre-accident average earnings and that only those should be used in the calculation of his benefit entitlement.

Analysis:

In order to determine the worker’s appeal, the panel must interpret the Act and the WCB policies and decide whether the worker's pre-accident gross weekly wages should be adjusted. After reviewing the relevant legislation and policy, the panel finds that:

(a) No adjustment should be made on account of the worker's age, pursuant to section 45(4) of the Act; and

(b) 19 weeks should have been used to calculate the worker's average earnings and his pre-accident gross weekly wages should be adjusted accordingly.

Section 45(4) adjustment based on age

The worker relies on section 45(4) as authority to adjust his average earnings to reflect the income earned by automotive refinishers in 2011. He submits that section 45(3) gives the WCB the discretion to make adjustments to average earnings so they would be fair to the worker.

The worker's submission does not refer to the Prospective Earnings Policy. The Prospective Earnings Policy sets out the guidelines which determine when the WCB will exercise its discretion to adjust earning capacity on account of age under section 45(4).

The Prospective Earnings Policy defines "Youthful Worker" as follows: "A worker who has not yet reached 28 years of age at the time of the accident and sustains a long-term loss of earning capacity."

In the present case, the worker was 28 years old at the time of the accident. He therefore does not qualify as a youthful worker under the Prospective Earnings Policy and is not eligible for adjustment to his earning capacity pursuant to section 45(4). While this result may seem to be very technical, the guidelines set out in the policy have been approved by the WCB Board of Directors as setting fair parameters for the exercise of the discretion under section 45(4), and the Appeal Commission is statutorily bound by WCB policies.

We therefore find that no adjustment of earning capacity should be made on account of the worker's age, pursuant to section 45(4) of the Act.

Calculation of Weeks

Although the worker's Appeal of Claims Decision form did not advance an argument on this particular aspect of adjustments of gross weekly wages, the Appeal Commission is the final level of appeal set out in the legislation. As such, we consider it our responsibility to do all things we deem necessary to ensure that the Act is properly applied within the ambit of the issue before us. During our file review of the worker's appeal, it came to our attention that there may be an error in the number of weeks used to calculate the worker's average earnings. For this reason, we invited the worker to provide us with his position on the issue.

In his October 3, 2011 submission, the worker asked that only his 10 best weeks of earnings be used to calculate his average earnings. He submits that these 10 weeks are the best representation of his true earning capacity when he is healthy and not affected by his occupationally induced disability. The panel does not accept this reasoning.

If the effects of the workplace chemical exposure caused a decline in the worker's productivity, one would have expected a steady decline. The numbers do not bear this out. Over the relevant period from October 25, 1999 to April 14, 2000, the worker's actual gross earnings fluctuated up and down in no particular pattern. His highest consecutive weeks of earnings were from January 31, 2000 to March 24, 2000, which was in the middle of the pay periods reviewed. The worker was a piece worker and therefore his pay would vary depending upon the amount of work he completed. In the panel's opinion, there are many other factors involved in determining how much the worker would have earned in a particular period, including the availability of work, personal commitments, holidays, etc. It is for exactly these reasons that the average earnings method is used. This method assumes that if a normalized pattern of consistent earnings is applied over a reasonable number of weeks, a fair figure is achieved. We see no reason why we should depart from this method and we are not convinced that the formula suggested by the worker would result in a more accurate figure. The worker essentially wants to "cherry pick" his most productive weeks to determine his earning capacity. In the panel's opinion, this may artificially inflate the worker's numbers and we do not accept that this figure would better reflect his true earning ability.

As noted earlier, the relevant time period is from the worker's start date of October 25, 1999 to his last day of work on April 14, 2000. This comprises 25 work weeks. According to the 1999/2000 calendars with handwritten notations on file, certain weeks were marked with an "x" to signify that they would not be included in the calculation, on the grounds that the worker was unable to work full time hours those weeks because of his compensable injury. Also, we note the worker had received WCB wage loss benefits for those pay periods which would not be included. There are six weeks marked off: December 13 - 17, 1999, December 20 - 24, 1999, January 10-14, 2000, January 17 - 21, 2000, April 3 - 7, 2000, and April 10 - 14, 2000.