The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

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.

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 (the “Average Earnings Policy”) outlines the processes used by the WCB to determine a worker’s average earnings.

Worker's Position

The worker attended the hearing and explained his reasons for appealing the decision. He answered questions raised by the panel.

The worker described the work accident and expressed concerns regarding the impact of the accident upon his life.

Regarding the calculation of his wage loss benefit rate, the worker said that it was unfair to calculate his earnings using his earnings over a short period when he had an established employment and earnings record. He explained that work as a diamond driller is cyclical being highly dependent on the economy. He said that in 2008, the economy slowed down and as a result he remained in his community and sought other employment operating heavy equipment.

He advised that during this period he married his long term partner and for a period in 2009 did not look aggressively for work. He said that it was his intention, when the economy improved, to return to diamond drilling. He said he hoped to earn sufficient funds at diamond drilling to start a business.

He pointed to the fact that in 2010, the economy was starting to pick up and jobs were slowly coming available, and he returned to drilling on two occasions. He acknowledged these were short term positions and that he worked only as a helper and not driller. He said that it has been his experience that one often starts as a helper and then gets promoted to a driller position. He said that he left work with the accident employer, on essentially no notice, to accept these jobs. This was common in the construction industry and was not a problem for his employer.

The worker maintained that he had received an offer of employment as a diamond driller shortly after the accident by way of an email alert. He had earlier sent his resume to this particular company. He advised the panel that he would have accepted the offer if he had not been injured. He said that in the diamond drilling industry, workers hear about jobs through friends (word of mouth) and via the internet/email and workers respond by phone and are hired by phone, based on their reputations and the recommendations by people already working for the hiring companies. Positions are filled very quickly. He said that the notice he received was a letter of intent and not a mere job posting or advertisement. He maintains that if he responded that he was available, he would have been hired.

The worker asked the panel to consider his earnings as a diamond driller in the calculation of his wage loss.

Employer's Position

The employer did not participate in the appeal.

Analysis

In reaching this decision the panel considered and applied WCB Policy 44.80.10.10, Average Earnings (the “Average Earnings Policy”). The panel specifically relies upon the definition of Average yearly Earnings:

"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 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 issue before the panel is whether or not the worker's average earnings have been correctly calculated. For the worker's appeal to be successful, the panel must find that the use of the worker's gross earnings for 2010 did not accurately reflect the worker's loss of earning capacity. The panel made this finding.

The panel finds that the use of the worker's earnings from 2010 does not represent an accurate reflection of the worker's loss of earning capacity. It does not take into account the worker's established occupational history and earning capacity. The panel finds that a more appropriate and accurate calculation is to use the worker's documentable employment data from an average of the five year period immediately prior to the accident which includes periods when the worker was employed in the diamond drilling industry.

The panel finds that the worker left the diamond drilling industry on a temporary basis, primarily due to a lack of employment in the industry, but continued to be connected to the industry. The panel arrives at this conclusion for the following reasons:

· The worker has demonstrated a stable record of employment in the drilling industry, and employment in the drilling industry is cyclical, being dependent on the economy.

· There was little employment in the drilling industry in 2009 to 2011, causing the worker to look for other employment.

· The worker demonstrated his continued connection to the drilling industry when he accepted two positions in 2010. The panel notes that the worker accepted the two short term positions in the drilling industry, while employed by the accident employer.

The panel accepts the worker's evidence that diamond drillers find employment through word of mouth and other communications such as emails.

Regarding the job posting received by the worker from the drilling company, the panel notes the memo which summarizes the discussion between the WCB manager and the drilling company representative about the company' emails with the worker. While the drilling company representative states it was not an offer of employment, the panel accepts the worker's position he would likely have been hired had he been medically able to accept the employment.