Decision #87/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") related to the calculation of his wage loss benefits. A file review was held on June 19, 2012 to consider the matter.
Issue
Whether or not the worker's wage loss entitlement effective November 14, 2011 was properly calculated.Decision
That the worker's wage loss entitlement effective November 14, 2011 was properly calculated.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for injuries sustained in a work-related accident on March 16, 2008.
On July 20, 2011, it was determined by the WCB's Review Office that the modified duties offered to the worker on June 22, 2010 by the pre-injury employer were appropriate. Review Office also determined that the worker's wage loss entitlement should be based on deemed earnings of $13.00 per hour effective September 22, 2010. The evidence to support this position was as follows:
- the worker's pre-accident wage was $16.55;
- the worker was not part of a union;
- the worker was not offered a position as an apprentice;
- the worker previously participated in a return to work plan from May to November 2009 for which he was paid minimum wage; and
- other employees' wages had increased 28% to 60% over a period of one and a half to four years.
With respect to the employer's submission that the deemed earnings be increased to $18.00 per hour effective September 1, 2010, Review Office indicated that it was unable to establish that this would have occurred following the start of the modified duty position in June 2010 despite the information provided by the employer's representative.
In October 2011, the employer's advocate requested a file review as it was the employer's position that the earnings for the modified duties position would have increased to $16.50 per hour.
On October 31, 2011, a WCB sector services manager advised the worker that the WCB was currently paying him partial wage loss benefits based on his ability to earn a full time hourly rate of $13.00 per hour. The rate was effective September 22, 2010. Based on information provided by the employer, the worker was advised that a proposed wage increase to $16.50 per hour was considered reasonable and in general alignment with wage increases experienced by other employees. Therefore effective November 14, 2011, the worker's eligibility for partial wage loss benefits would be based on the proposed opportunity to work full time modified duties at a rate of $16.50 per hour.
A hearing was held by a separate panel at the Appeal Commission on November 7, 2011 to consider issues appealed by both the employer and the worker related to wage loss and modified duties. A decision was rendered on December 20, 2011 and can be found under Appeal Commission Decision No. 175/11.
On January 24, 2012 the Worker Advisor Office appealed the decision made on October 31, 2011 to Review Office. It was the worker's position that the deemed earning capacity of $16.50 per hour was not in keeping with the proposed modified duties or with the Appeal Commission's decision under Decision No. 175/11. The submission stated:
In the decision, the Appeal Commission stated:
We are not able to accept the worker's position that he should continue to be deemed at minimum wage. We accept the employer's position, noted above, that it would have paid the worker $13.00 per hour based on a re-evaluation of the modified duty position. We do not accept the employer's position set out in its letter of August 31, 2010 and subsequently, that it would have been paying the worker $18.00 per hour effective September 1, 2010. The employer noted that this would have been closer to the worker's pre-injury rate. We find the new position, which is not a union position, is not the equivalent to a painter/apprenticeship position. It is a new position which does not require the skill of a painter.
While the earning capacity amount of $16.50 per hour is not specifically addressed in the decision, we suggest the Panel's findings are still relevant to this issue.
The Appeal Commission found that the modified duties position would not entail the greater skill level of [the worker's] pre-accident position as a painter; accordingly, the panel did not accept the employer's position that it would have been paying the worker $18.00 per hour starting in September 2010, an amount the employer noted was closer to the worker's pre-injury rate of pay.
It is important to note, however, that [the worker's] hourly wage rate prior to the accident was $16.55 per hour, as indicated by the employer on the WCB Incident Report (March 18, 2008).
In context of the Panel's finding that the proposed modified duties are not comparable to the pre-accident work, we submit wage loss benefits should not be based on $16.50 an hour, an amount equivalent to the pre-accident rate of pay. We request this decision be rescinded, and that the deemed earning capacity be returned to $13.00 per hour.
In a submission to Review Office dated February 21, 2012, the employer's representative was in support of the WCB's decision dated October 31, 2011.
On March 14, 2012, Review Office determined that the worker's wage loss entitlement effective November 14, 2011 was properly calculated. Review Office noted that previous Review Office and Appeal Commission decisions found that there was insufficient evidence to support a wage increase to $18.00 per hour three months after the modified position was offered to the worker. It was also determined that a 38% increase in three months was not consistent with the increases received by other employees.
Review Office acknowledged that the modified duties position did not require the skill of the worker's pre-accident position; however, Review Office found that an increase of approximately 21% over a one year period was consistent with increases provided by the employer to other workers. It found no evidence on file to support that the wages for the modified position should remain at $13.00 an hour and felt that the wage increase to $16.50 was reasonable. Review Office therefore concluded that the worker's wage loss entitlement effective November 14, 2011 was properly calculated. On March 23, 2012, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
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. 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 40(1) of the Act defines loss of earning capacity as the difference between the worker’s net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.
Worker’s Position
The appeal was filed by the Worker Advisor Office on behalf of the worker. The worker's position was that the deemed earning amount of $16.50 effective November 14, 2011 was inappropriate and did not correspond with the probable wage rate attached to the proposed modified duties. It was submitted that in order for the worker's deemed earning capacity to be increased, the panel would have to be convinced on a balance of probabilities that $16.50 per hour was the wage rate that would be attached to the proposed modified duties as of the date of its implementation on November 14, 2011. It was suggested that the prior Appeal Commission Decision 175/11 called such a finding into question, given the comments that the alternate duties did not require the same skill as that of a painter and that it was not a union position or equivalent to a painter/apprenticeship position. It was also noted that there was no set plan for wage increases and the information from the employer regarding the wage rate attached to the alternate duties was varied and sometimes conflicting.
Analysis
The issue before the panel concerns the proper wage rate to be applied to the modified duties position offered by the employer to the worker. This, in turn, will determine the worker's deemed earning capacity and wage loss entitlement. In order for the worker’s appeal to be successful, the panel must find that the wage rate should not be raised to $16.50 per hour, and instead should remain at $13.00 per hour. On reviewing the facts of this case, we are unable to make that finding. In the panel’s opinion, an increase of the wage rate to $16.50 per hour is reasonable and supported by the evidence.
The previous Appeal Commission panel decided to increase the worker's wage rate from minimum wage to $13.00 per hour effective June 22, 2010 to September 22, 2010. In coming to this decision, the previous panel stated:
We note that the employer offered a starting wage of $13.00 per hour. This is confirmed in a memo from the case manager dated July 6, 2010. The memo notes the employer is offering $13.00 per hour. This was also confirmed in the employer's August 31, 2010 letter which indicated that it was prepared to pay $13.00 per hour. We accept the employer's explanation that the increase to $13.00 was based on a re-evaluation of the position.
Thus it would appear that the decision to raise the rate from minimum wage to $13.00 per hour was based on documentation on file which confirmed that an offer to pay $13.00 was actually communicated.
When considering what the worker's wage rate should be for the period after September 22, 2010, the previous panel was provided with a letter from the employer dated August 31, 2010 which stated that after reconditioning, the employer would have paid the worker a further $5.00 per hour or $18.00 per hour effective September 1, 2010. This evidence was not accepted by the previous panel. It stated that the new position was not a union position and was not equivalent to a painter/apprenticeship position. Essentially, the previous panel did not accept that this wage rate would have been offered to the worker. It therefore found that it would be reasonable to continue deeming the worker at the rate of $13.00 per hour.
This panel is asked to consider the worker's wage rate to be applied effective November 14, 2011. We find that the wage rate of $16.50 was actually offered and communicated to the worker, and that is sufficient to satisfy us on a balance of probabilities that the wage rate applicable to the modified duties position as of November 14, 2011 should be increased to $16.50 per hour. Specifically, the panel notes the following evidence on file:
- On October 19, 2011, the case manager conducted a file review and noted that he could not find confirmation that a wage increase to $16.50 was specifically communicated to the worker. A discussion with the employer's advocate was documented whereby the case manager indicated that he would support an increase to $16.50 per hour if this offer was presented to the worker. The employer advocate agreed that a formal offer should be made.
- By letter dated October 31, 2011, the case manager wrote to the worker and advised that the employer was proposing a wage increase to $16.50 and that the letter constituted a formal offer. If a response to the offer was not communicated, it would be assumed that the formal offer was being declined and effective November 14, 2011, eligibility for partial wage loss benefits would be based on the rate of $16.50 per hour.
- On November 3, 2011, the case manager contacted the worker by telephone to discuss the offer of employment at $16.50 per hour. The worker was informed that the offer of employment was available immediately, and that his benefits would be reduced based on his ability to earn $16.50 per hour as of November 14, 2011. The memo indicates that the worker said that he understood.
The panel is satisfied that the offer of modified duties at $16.50 per hour was in fact presented to the worker effective November 14, 2011. Had the worker accepted the offer for modified duties, he would have been capable of earning that amount. The panel therefore finds that it was appropriate to increase the worker's wage rate to $16.50 per hour and that his wage loss entitlement effective November 14, 2011 was properly calculated. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerP. Marsden, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 26th day of July, 2012