Decision #12/12 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by Review Office of the Workers Compensation Board ("WCB") in relation to his claim for a work-related right ankle injury that occurred on January 12, 2011. A hearing was held on October 26, 2011 to consider the issues as outlined below.Issue
Whether or not the worker is entitled to both payments covering wage loss benefits for the period February 11, 2011 to February 24, 2011;Whether or not the WCB should accept responsibility for the NSF fee; and
Whether or not the worker's average earnings have been correctly determined.
Decision
That the worker is not entitled to both payments covering wage loss benefits for the period February 11, 2011 to February 24, 2011;
That the WCB is not responsible for the NSF fee; and
That the worker's average earnings have been correctly determined.
Decision: Unanimous
Background
On January 12, 2011, the worker injured his right ankle in a work-related accident. His claim for compensation was accepted based on the diagnosis of a right ankle soft tissue injury.
Wage information was obtained from the accident employer by a WCB adjudicator. The worker began employment with the company on October 27, 2010 and worked 25 to 30 hours per week. The worker's gross earnings for the period October 27, 2010 to January 12, 2011 was $4,049.03. Based on this information, the WCB calculated the worker's average earnings at $361.52 per week effective January 13, 2011 ($4,049.03/11.2 weeks = $361.52 per week).
On February 9, 2011, the worker expressed concerns over the calculation of his benefit rate as he felt it should be higher. The worker confirmed that he had been a mechanic for several years and prior to working with his present employer, he had worked with someone else for 3 years. The worker was asked to bring in his last year income tax returns and the WCB would consider adjusting his benefit rate. On February 10, 2011, the worker submitted his notice of assessment form for the tax year of 2009.
On Tuesday, February 22, 2011, the worker called the WCB and asked if he could pick up his wage loss cheque on February 23, 2011. The case manager agreed to the worker's request which resulted in the WCB cancelling one cheque that had already been processed (in the amount of $574.04) and issuing another cheque to the worker in the same amount for the period February 11, 2011 to February 24, 2011, which he picked up on February 23.
On March 4, 2011, the worker called the WCB to advise that he received a cheque by mail on Friday, February 25, 2011 in the amount of $574.04 which he thought was an adjustment cheque. He cashed the cheque, the bank withdrew the funds from his account because of the stop order, and the bank charged him a NSF fee (Non Sufficient Funds). The worker asked the WCB to pay for the NSF charge as he felt it was the WCB's mistake.
In a letter dated March 7, 2011, the worker was advised that the WCB was unable to cover the NSF charge as it was the WCB's practice that when a cheque is replaced with a manual cheque as was in this case, the first cheque had a stop payment placed on it. As the worker was not entitled to both payments, the WCB would not cover the NSF charge. On March 7, 2011, the worker appealed the decision to Review Office.
On March 16, 2011, the WCB confirmed that the worker's average earnings had been correctly calculated at $361.52 per week based on his decision to change to a part time position while employed with the accident employer. The worker disagreed with the decision and an appeal was filed with Review Office.
On March 29, 2011, Review Office determined that the worker was not entitled to both payments of wage loss benefits for the period February 11, 2011 to February 24, 2011. Review Office noted there were no provisions in board policy or the Act that would allow for a worker to receive more than the established benefit rate for any period of time that they are in receipt of wage loss benefits. If the worker received both payments, the wage loss benefits payable for the period February 11 to February 24 would exceed 90% of the worker's loss of earning capacity. It found that the worker received his full entitlement for the period February 11 to February 24 and there was no entitlement to any additional wage loss benefits for this period.
Review Office determined that the WCB was not responsible for any banking charges that were incurred by the worker. Review Office noted that the worker did not contact the WCB to inquire why he received a second cheque for the same dollar amount and for the same pay period, even though he had been in contact with the WCB on a number of occasions regarding his wage loss payments and his benefit rate. Review Office indicated that it was unfortunate that the worker's financial institution allowed him to cash the cheque but it was not the WCB's responsibility to pay the bank charges.
With regard to the issue of average earnings, Review Office noted that the worker's gross weekly earnings were determined to be $361.52 per week which was the worker's actual loss of earnings due to his compensable injury. Review Office indicated that the worker was averaging less than 40 hours per week although the worker wanted to work more hours. It was felt that the worker's benefits rate was correctly established based on what he was earning at the time of his compensable injury. On April 5, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
On November 23, 2011, the worker was provided with the following information and was invited to provide comments to the panel:
- An Appeal Commission memorandum dated October 31, 2011 which indicated that the pay stub of a WCB cheque would identify whether the cheque was related to wage loss, medical aid or travelling expenses, etc. The pay stub would also indicate the time period that the cheque was related to.
- WCB wage loss payment information regarding the two cheques that were issued to the worker for the period February 11, 2011 to February 24, 2011.
On November 24, 2011, the worker provided a written submission to the panel related to the information that was provided to him on November 23, 2011. On December 12, 2011, the panel met to further discuss the case and rendered its final decision.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends. Subsection 39 (5) provides that wage loss benefits must not exceed 90% of the worker's loss of earning capacity. Subsection 45(1) provides that the WCB will calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such periods of time, as the board considers fair and just.
The Board of Directors has enacted WCB Policy , 44.80.10.10.01, Average Earnings. This policy provides guidance to the WCB in calculating a worker's earnings for the purpose of wage loss benefits.
Worker's Position
The worker attended the hearing and explained his reasons for appealing the decisions. He also answered questions posed by the panel.
Regarding the first issue, the worker said that he did not agree with the way this issue was worded. He said that he is not questioning whether he is entitled to receive both cheques but rather that he was not responsible for the error in sending a second cheque and for cashing the second cheque. He said that he always picked up his cheques and did not expect a cheque to be mailed to him. When he received the cheque, he thought it was an adjustment of his wage loss benefits. He said he was not told to hold the second cheque.
The worker advised that he had been told by WCB staff that WCB would review the calculation of his wage loss benefits and consider factors such as his past income and his future earning ability. He advised that he dropped off his 2009 income tax assessment notice at the WCB office to assist the WCB in recalculating his wage loss benefits. He therefore did not question the receipt of the cheque. He does not feel that he should be responsible for the amount of the cheque.
The worker advised that he cashed the cheque but the WCB had issued a stop payment on the cheque. This resulted in him owing the bank the value of the cheque. He advised that the bank also charged him an NSF fee. He wants the WCB to pay the fee as he feels that it was the WCB's error which resulted in the charge.
Regarding the wording of the issue, he said:
"That wasn’t really the issue; it was whether or not I was entitled to more than the calculated amount because I had hurt myself and I was working in a place where I wasn’t really happy with the wages and I was seeking other employment at that same time. So they brought that to my attention: that if I did not hurt myself there, would I have been able to get another job elsewhere making more money? And I said, well, that’s, that’s, yes, that’s what they informed me of. They were willing to pay me on account of my last year’s income tax and they requested that I bring this to them."
He explained that the WCB instituted the discussion with him on whether he is being paid the appropriate amount. He told the panel that the position with the accident employer was going to be part-time but understood it would lead to full-time. He advised that it never reached full-time.
In answer to questions from the panel, the worker provided a chronology of his recent employment and unemployment. He advised that he was unemployed and out of the job market before taking this position. After he recovered from the injury, he found employment as a mechanic. He is expecting to return to school.
Employer's Position
The employer did not participate in this appeal.
Analysis
Issue 1: Whether the worker is entitled to both payments covering wage loss benefits for the period February 11, 2011 to February 24, 2011?
At the hearing, the worker acknowledged that he was not entitled to receive double payment for the same period. He said he cashed the second cheque because he thought it was an adjustment to his benefit level. He did not realize it was for the same period as the cheque he had just picked up and cashed.
The worker is not entitled to both payments covering the wage loss for the same period. The Act does not authorize payment of wage loss benefits in excess of 90% of net earnings.
The appeal is dismissed on this issue.
Issue 2: Whether the WCB should accept responsibility for the NSF fee?
For the worker's appeal to be successful, the panel must find that a WCB administrative error caused the worker to incur the NSF fee. We were not able to find that the WCB made an administrative error and were not able to find that the WCB should accept responsibility for the NSF fee charged to the worker by his bank.
The worker asked the WCB to pay the NSF fee that was charged to his bank account. The NSF fee was assessed because the WCB had issued a stop payment on the cheque. The worker said that the WCB should be responsible because the WCB did not advise him the cheque was a duplicate and did not advise him that he should not cash the cheque.
The panel finds that it was not reasonable for the worker to cash the cheque that he received in the mail. This cheque was for the same amount as the cheque he picked up at the WCB two days earlier. The annotation on the cheque also indicated that it was for the same period as the cheque he picked up. The WCB did not make an error in issuing the cheque or in issuing a stop payment. The WCB issued a second cheque on February 23 at the request of the worker and had no choice but to cancel the original cheque which was sent by mail.
The worker's appeal on this issue is denied.
Issue 3: Whether the worker's average earnings have been correctly determined?
For the worker's appeal of this issue to be successful, the panel must find that the WCB did not properly calculate the worker's average earnings. We find, on a balance of probabilities, that the worker's average earnings were correctly calculated based upon the information available.
The information before the WCB and this panel is that the worker was unemployed and out of the work force for a significant portion of 2010. At the hearing, the worker indicated that he was hired on a part-time basis but that this position would develop into a full time position. The employer advised the WCB that the worker was hired on a part-time basis. Given this information, the WCB calculated the worker's average earnings using the worker's actual earnings from this job and concluded that this would be an accurate representation of earnings over the 52 weeks of the year. The panel finds that the WCB correctly, applied the Average Earnings Policy in establishing the worker's average earnings at $361.52 per week.
The panel asked the worker for authorization to obtain additional information about his earnings in 2010. The worker advised that he did not feel this information was relevant.
The worker's appeal of this issue is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 17th day of January, 2012