The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appeals the decision made by the Workers Compensation Board ("WCB") that his current medical condition is not related to his compensable injury and therefore he is not entitled to wage loss benefits beyond June 14, 2011. The worker also disagrees with the WCB's decision regarding the calculation of his average earnings. A hearing was held on July 4, 2013 to consider these matters.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 14, 2011; and

Whether or not the worker's average earnings have been correctly established.

Decision

That the worker is not entitled to full wage loss benefits beyond June 14, 2011 but is entitled to partial wage loss benefits; and

That the worker's average earnings have been correctly established.

Decision: Unanimous

Background

The worker is appealing two decisions made by the WCB. The following background addresses each issue separately.

Wage loss benefits:

On June 11, 2004, the worker filed a claim with the WCB for right elbow difficulties that began in October 2002 which he related to "overuse and repetitive work, 12 hour shifts" at his employment as a steelworker. His claim for compensation was accepted and the worker was diagnosed and treated for right lateral epicondylitis. The condition never fully resolved and the worker has permanent compensable restrictions related to his right arm.

In October 2009, the worker advised the WCB that due to staffing changes, he was moved to a different position and that his new work duties caused his arm to spasm and his elbow pain to return. On November 23, 2009, a WCB case manager accepted that the worker experienced a recurrence of a repetitive strain injury to the right elbow due to repetitive duties and working outside his restrictions.

On May 6, 2010 the worker advised the WCB that he was experiencing pain in his arm that travelled up to his shoulder, neck and head which were causing him headaches. On May 17, 2010, the case manager determined that the worker's increased headaches and associated symptoms were not part of his compensable injury as there were no medical reports to support that his symptoms were attributable to his original elbow injury.

In September 2010, the worker underwent medical testing and was diagnosed with a right posterior interosseous nerve lesion ("PIN") by the treating neurologist. On November 17, 2010, the worker underwent release of the right PIN. On December 9, 2010, a WCB orthopaedic consultant concluded that the diagnosis related to the compensable injury was probably radial tunnel syndrome rather than epicondylitis. Responsibility for the surgical procedure performed on November 17, 2010 was accepted as a WCB responsibility.

On January 4, 2011, the treating neurologist stated: "This patient was seen in follow-up today. He feels his strength is improving in the right hand. Exam still shows moderate weakness of extension of the fingers on the right hand, especially the medial three. Repeat EMG/NCS…still showed the chronic denervation in the posterior interosseus nerve distribution, not significantly changed from the presurgical test."

On April 26, 2011, the worker was seen by a physical medicine and rehabilitation specialist ("physiatrist") for complaints of neck and shoulder pain. It was reported that the surgical release performed in November 2010 provided the worker with no relief in symptoms. The impression of the worker's condition was:

• Status post PIN syndrome release
• MFP/post surgical adhesions supinator
• Weak scapular stabilizers/shoulder laxity
• Deconditioning
• Neuropathic pain

The physiatrist stated:

I have encouraged [the worker] that the shoulder and neck pain is not due to impingement of the nerve in the forearm. He does have postural abnormalities, and deconditioning that are problematic due to compensatory movements, but there are no signs of radicular symptoms or shoulder structural problems causing his symptoms…I would recommend a course of physiotherapy to help recondition his shoulder, scapular stabilizers and postural muscles.

On April 28, 2011, the WCB's orthopaedic consultant indicated that maximal clinical improvement following radial tunnel decompression would be experienced after three months and maximal improvement of neuro-physiological function on EMG/NCS might be expected at one year post-op. He noted that to date, there had been no improvements in comfort or function following surgery. The consultant agreed with the treating physiatrist that the worker's neck and shoulder complaints were not related to the forearm condition. The consultant felt that the previous permanent restrictions were still valid and would permit only modified work.

In a letter dated May 2, 2011, the worker was advised that his file had been reviewed by a WCB healthcare consultant and that his restrictions remained the same as previously. The restrictions were:

• Avoid repetitive twisting and forceful grasping with the right arm.
• No pushing, pulling or lifting over 40 pounds.

On May 5, 2011, the worker advised his WCB case manager that he saw his physiatrist the day before and he was being referred for a second neurological opinion and an MRI. The worker indicated that he was periodically having spasms in both his legs. The worker believed that his symptoms were the result of his forearm condition.

In a report dated May 24, 2011, the neurologist reported that he performed electrophysiological studies and the main findings were that of "diffuse fasciculations." He stated that these were benign.

A report from the orthopaedic surgeon dated June 13, 2011 indicated that the worker "…demonstrates complete improvement in his posterior interosseous nerve function." The surgeon noted that he did not have any surgical options and that the worker was going to continue with medical management. He said he gave the worker a note regarding his inability to work.

On June 22, 2011, the case manager advised the worker that he would receive full wage loss benefits to June 14, 2011 inclusive and final. The case manager noted that the recent report from the neurologist noted diffuse fasciculations. She indicated that the note from the neurologist indicated that the worker was unable to work due to spasms in his right arm and legs. It was felt that these symptoms were separate from his work injury.

In a July 7, 2011 report, the treating neurologist stated: "Today I told [the worker] that his features of generalized muscle twitching are not seemingly related to the accident of 2009 at which time he injured his right arm. Although he apparently has some twitching of his right arm, the generalized muscle twitching appears to be related to benign fasciculations, previously noted. This is not compensable in my opinion, nor does it need to be."

On July 14, 2011, the WCB orthopaedic consultant answered questions posed by the case manager regarding the worker's medical condition. The consultant stated:

• the diagnosis of the workplace injury was probably right radial tunnel syndrome, supported by the clinical findings of the treating orthopaedic surgeon, the NCS/EMG findings and the findings reported at surgery.
• a serious neurological diagnosis such as MS or motor neuron disease had been excluded at this time in favor of a diagnosis of benign fasciculations.
• the findings in the other limbs are unrelated to the workplace injury.
• the chronic denervation of the PIN at the radial tunnel is probably related to the workplace injury.
• the permanent restrictions were appropriate.

On July 14, 2011, the worker was seen for a follow-up visit with the orthopaedic surgeon. The surgeon indicated that the worker continued to complain of spasms in his legs, right upper extremity and neck region. The worker indicated that these conditions were continuing to worsen and he was unable to return to work. The surgeon noted that the worker did not obtain significant relief from the complete PIN release. The surgeon stated: "I would be hard pressed to offer him a scar release or anything around the PIN as I do not feel that I (sic) would be likely to make him any better."

On July 19, 2011 the worker appealed the case manager's decision of June 22, 2011 to Review Office. The worker indicated that he had medical support showing that he was unable to work due to pain and spasms and that the nerve in his arm was aggravated with any movement.

In a decision dated October 4, 2011, Review Office determined that the worker was not entitled to wage loss benefits beyond June 14, 2011. In making this determination, Review Office relied on the medical report from the worker's treating physiatrist dated April 26, 2011 and the reports by the treating orthopaedic surgeon dated June 13, 2011 and July 14, 2011. It also relied on the medical opinions outlined by the WCB healthcare consultant dated April 28, 2011 and July 13, 2011. Review Office determined that there was insufficient evidence to conclude that the worker was not capable of returning to work in alternate job duties within his permanent restrictions.

In a report dated November 21, 2011, the treating orthopaedic surgeon stated:

He presented a letter that had a quotation from one of my visits with him stating that his posterior intraosseous nerve function recovered completely.

It did indeed recover completely but following his radial tunnel release, he did have posterior intraosseous nerve palsy, which is quite common. He had weakness of his wrist extensors, thumb extensor, and finger extensors. Luckily unfortunately (sic), this has completely improved the posterior intraosseous nerve motor dysfunction from the procedure was certainly not primarily caused by his workplace injury.

On February 16, 2012, the worker provided Review Office with additional medical information for consideration dated November 21, 2011, January 10 and 11, 2012. The reports were then referred to a WCB orthopaedic consultant for comment. On April 26, 2012 the consultant stated:

The letter from [orthopaedic surgeon] has a probable misprint and should probably read "Luckily and fortunately" rather than "Luckily unfortunately" in reference to the recovery of function after surgery.

The report from [neurologist] dated 6-July-2011 contained the electrophysiology test results which defined mild chronic denervation of extensor muscles of the right forearm.

1. The workplace injury was extensor tendinitis of the right forearm and compression neuropathy of the right posterior interosseous nerve (PIN). Dysfunction of mild degree of the PIN continues.

2. Other anatomic sites of spasms and related symptoms are not related to the workplace injury, based on neurological assessment by [neurologist].

3. Recommended restrictions related to the workplace injury are:

i) No repetitive forceful use of the right hand

ii) No lifting more than 20 lbs with the right upper limb

iii) With the above physical restrictions reduced shift durations would probably not be needed. Restrictions should be reviewed in 6 months.

In a letter to the worker dated April 30, 2012, Review Office reviewed the opinion expressed by the WCB consultant dated April 26, 2012 and concluded that although the recommended restrictions directly related to the workplace injury had been altered, there would be no change in the previous decision that there was no entitlement to wage loss benefits beyond June 14, 2011. Review Office felt there was insufficient evidence to conclude the worker was not capable of returning to alternate job duties.

The worker's case was again considered by Review Office based on new medical information from the worker's treating physiatrist and neurologist. The new information was then reviewed by a WCB orthopaedic consultant on October 31, 2012 at Review Office's request. The consultant stated:

"The report from PM & R specialist, [doctor's name], dated 2-Aug-2012, stated that the clinical findings were those of "radial nerve irregularity" and also "multiple myofascial trigger points in the right upper extremity muscles."

The report from the neurologist, [doctor's name], dated 24-Oct-2012, indicated ongoing abnormality of the posterior interosseous nerve (PIN) of the right forearm and advised "no repetitive work" with the right upper limb. He stated that lifting would be OK.

In my opinion, the ongoing impairment of the right PIN is related to the workplace injury. This is the residual effect of the radial tunnel syndrome. The myofascial features described by Dr. [name] are not related to the workplace, on balance of probabilities, as there is no objective medical evidence to confirm a causal relationship.

Recommended restrictions, to be reviewed in 6 months, are:-

(a) No lifting and carrying more than 20 lbs with the right upper limb

(b) No repetitive twisting and grasping with the right hand

On November 1, 2012, Review Office determined that there would be no change to its previous decision of April 30, 2012 that the worker was not entitled to wage loss benefits beyond June 14, 2011. Review Office indicated that the evidence supported that the worker was capable of the alternate job duties of a storekeeper. It stated that the worker's restrictions may have been altered but there was no evidence to support that the job duties of a storekeeper did not meet his altered restrictions. On March 21, 2013, the worker disagreed with the decision and an appeal was filed with the Appeal Commission.

Average Earnings Calculations:

At the time of his compensable injury, the worker was employed in a Job Class 12 position. He worked 12 hour shifts and was paid overtime when needed. He was also paid overtime when statutory holidays fell on work days or days off. Following his recurrence in 2009, the worker was placed in a Job Class 10 position.

Commencing February 1, 2009, an EI work share plan was initiated for persons employed in the worker's job Class 12 position. On April 10, 2010, the work share plan ended.

On June 16, 2011, a WCB payment specialist noted that the employer provided the WCB with earnings related to other similar employees to compare pre economic downturn earnings for both level 10 and level 12 positions to earnings that took into account the EI work share plan. The payment specialist said it was clear that 2010 averages were much lower than those prior to the EI work share starting and ending. The average wage for a level 12 operator was $64,744.00 in 2010. He stated that these 2010 earnings were a more accurate reflection of the worker's loss of earnings since this was what he would currently be earning as opposed to what he had made in previous years. The payment specialist stated that the worker should not be in a better financial position than any other workers because the WCB used earnings which did not reflect the current work condition. His recommendation was to increase the worker's pre accident earnings to reflect the 2010 average of the level 12 position of $64,744.00/52 = $1245.08 per week.

On June 20, 2011, the worker was advised by his case manager that a new benefit rate had been established. The case manager stated:

I have acted on the payment specialist's recommendation that we increase your pre-accident earnings to reflect the 2010 average of the level 12 position of $64,744.00/52 = 1,245.08. Based on this information, your new weekly benefit rate is $780.08 and an adjustment of $2,448.42 is being issued to you. I have attached the payments memos put to file in regard to this matter for your review.

The worker appealed the above decision to Review Office. The worker provided Review Office with overtime sheets for three different Job Class 12 workers during November 2010.

On October 4, 2011, Review Office determined that the worker's wage loss benefit rate had been calculated correctly. Review Office agreed with the WCB payment specialist's recommendations. It stated that the worker should be entitled to wage loss benefits based on what the Job Class 12 position was paid in 2010 as that would reflect the worker's actual loss in earnings. Review Office noted that the employer provided wage information based on the average wages of 20 workers in Job Class 12 in 2010. The 2009 earnings were shared with EI, and Review Office was of the opinion that the 2010 actual earnings in the Job Class 12 position was a more accurate reflection of what the worker would have been earning, if not for the recurrence of October 2009.

On February 16, 2012, the worker asked Review Office to reconsider its decision. The worker stated that he had been a successful candidate for the job Class 12 position approximately two years before the date provided.

In a decision letter dated April 30, 2012 Review Office determined that no change would be made to its previous decision that the wage loss benefit rate had been correctly calculated.

In a letter to the worker dated May 23, 2012, Review Office stated:

The Review Office accepted the opinion of both the WCB Payment Specialist and Case Manager that you should be paid at a Job Class 12 (which is the locomotive position).

The employer provided wage information based on the average wages of 20 workers in the Job Class 12 in 2010. The payment specialist calculated benefits based on the earnings of a Job Class 12 position in 2010; as it reflected your actual loss in earnings. The Review Office accepts the opinion of the case manager and the payment specialist that the 2010 actual earnings in the Job Class 12 position is a more accurate reflection of what you would have been earning if you had continued to work and had not had a recurrence in October 2009. As such, the Review Office accepts that your wage loss benefits were correctly calculated.

On January 23, 2013, the worker appealed the May 23, 2012 decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested information from the employer related to the average earnings actually earned by other workers who performed the same position as the worker. A response from the employer was later received and was shared with the worker and his union representative for comment. On August 12, 2013, the panel met further to discuss the case and render its decision on the two issues under appeal.

Reasons

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.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years.

WCB Policy 43.20.25, Return to work with the Accident Employer (the “Return to Work Policy”) outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Return to Work Policy describes suitable modified or alternative work as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

In order to determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

Section 45 of the Act deals with the calculation of average earnings. Subsection 45(1) of the Act 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 “Average Earnings Policy”) addresses how the WCB initially establishes average earnings. The wage loss benefits which are paid to injured workers are based on the average earnings figure. The Average Earnings Policy sets out a number of different methods which may be used to calculate a worker’s average earnings, depending on the circumstances and states that: “The method used will always be the one that best reflects the worker’s actual loss of earnings.”

The formulas which may be used to establish a worker's average earnings are detailed in the Average Earnings Policy. These formulas incorporate either regular earnings at the time of the accident, average yearly earnings or probable yearly earning capacity. Again, the Average Earnings Policy states that the formula that best represents the worker's loss of earnings will be chosen.

The worker’s position:

The worker was self-represented in the appeal and was accompanied by a union representative.

With respect to the average earnings issue, it was submitted that the WCB should not have used a fabricated number based on 2010 earnings of other workers in the same position. The worker's position was that the average income he earned between 2006 and 2009 should have been used. The worker also relied on a schedule of pay rates for 8 and 12 hour shifts which was prepared by the employer's payroll specialist. It was submitted that when the 12 hour schedule was applied, the average earnings should be a minimum of approximately $68,546. When average earnings from 2006 to 2009, plus cost of living increases, plus raises were taken into account, the worker felt that the average earnings should be a minimum of $77,000. The worker stated that his T4's from 2006 to 2008 showed he never made less than $77,000 during those years. The worker felt that if he had not been transferred from his job position, he would have earned the same level of wages. The worker denied that a work share program put in place in mid-2009 would have affected the wages, as he believed that his original department was not much impacted by the cost-cutting measures. He did not accept the figures provided by the employer to the WCB regarding the average wage earned by the Job Class 12 operators working in the worker's original position in 2010.

With respect to the issue of wage loss benefits beyond June 14, 2011, the worker's position was that he continued to suffer from the effects of his workplace injury and at the time of the hearing was receiving trigger point needling. The worker felt that until the needling treatments were completed, he would not be able to return to the workplace. The storekeeper position which was offered by the employer as a modified duties position was a very busy position which the worker felt was outside of his abilities given the limitations of his right arm. On a normal day, 60 percent of his job involved driving a forklift which was problematic as the right hand was required to operate three directional controls. The other 40 percent of the job required computer data entry, which also required use of the right arm. The worker felt that any job which required repetitive use of the right hand would aggravate his injury. The use did not need to be forceful for an aggravation to occur, just repetitive.

The employer's position:

The employer was represented by an occupational health nurse and a human resources manager.

With respect to the average earnings issue, the employer's position was that the WCB did its calculations based on the average earnings of the people in the job class in the diesel area for 2010 which was thought to be a representative sample of what was occurring at the time the worker suffered his recurrence. In 2010, there was a work share program in place which resulted in restricted overtime and restricted hours for employees. The overtime during that period was half the amount that had been available in previous years. It was submitted that persons working in the worker's position were not earning the same earnings they were earning in 2006, 2007 and 2008. It was submitted that the worker's average earnings had been calculated in a fair way considering that the 2006 to 2009 period was not a good representation of earnings paid to workers from 2010 onwards.

With respect to the issue regarding entitlement to wage loss benefits, the employer's position was that since the worker had surgery, he had recovered back to his pre-aggravation status level from October 2009 and that the permanent restrictions established in February 2005 were appropriate. The employer agreed with the WCB's determination that the worker had a number of additional symptoms and findings which were not related to the 2002 workplace injury and were not compensable. These additional non-compensable symptoms were the reason why the worker was presently unfit for work.

Analysis:

There are two issues before the panel. We will address each one in order.

1. Whether or not the worker is entitled to wage loss benefits beyond June 14, 2011.

The first issue deals with entitlement to wage loss benefits. In order for the appeal to be successful, the panel must find that after June 14, 2011, the worker's ability to earn his pre-recurrence income was impaired. We are able to make that finding in part.

The worker's compensable injury was right radial tunnel syndrome and despite surgical intervention, he was left with chronic denervation of the right posterior interosseous nerve. As a result of his compensable injury, the worker was left with permanent restrictions which, as at June 14, 2011, were to avoid repetitive twisting and forceful grasping with the right arm and to avoid lifting, pushing or pulling over 40 pounds. The panel notes that in May, June and July, 2011, the worker was presenting with a number of symptoms, including weakness and fasciculations in all four extremities. As the medical evidence does not support a causal relationship between these symptoms and the worker's right radial tunnel syndrome, the panel can only take into account the disability caused by the chronic denervation when considering whether the worker's ability to earn his pre-recurrence income was impaired.

In June 2011, the employer offered the worker accommodated work in the storekeeper position. This was a Job Class 10 position, which paid a lower wage than the worker's pre-recurrence position, which was Job Class 12. If a worker was at level 12 and they were accommodated at level 10, the worker would continue to be paid at level 12 for 60 days, following which the worker would then be placed at level 10. The worker was first placed in the storekeeper position on May 3, 2010 and on July 2, 2010, his rate of pay was reduced from level 12 to level 10. It is not clear to the panel whether the worker would have been paid at level 12 or level 10 had he reported for work on June 15, 2011.

In December 2012, the WCB conducted a worksite assessment of the storekeeper position. The duties of the position were reviewed and it was concluded that with some modifications, the job duties would fall within the worker's restrictions. It is notable that at the time of the worksite assessment, the restrictions being considered were no repetitive, forceful use of the right hand and no lifting more than 20 pounds with the right upper limb. Therefore, the weight limits being considered at that time were more restrictive. With respect to the restriction concerning the use of the right hand, at the hearing, the worker took issue with the combining of the terms repetitive and forceful when describing his restrictions. The worker felt that he could not do any repetitive work with his right hand, regardless of whether the use was forceful or not. The worker felt that any use of his right hand would cause aggravation and that the only appropriate duties for him would be duties he could perform with his left hand only.

The panel does not accept the worker's submission that he was unable to perform any duties whatsoever with his right hand. The medical reports do not support a complete inability to use the right hand. With respect to the storekeeper job duties, the recommendations for modification included limiting operation of the forklift to an occasional frequency. The panel finds that by limiting the forklift duties to an occasional frequency, the worker would be able to avoid repetitive use of the right hand. The employer had indicated a willingness to modify the storekeeper duties to comply with the worker's restrictions and given this, the panel finds that the storekeeper position could have been suitable work which would have enabled the worker to minimize his loss of earning capacity. The panel feels that the worker should have attempted to return to the storekeeper position and accept the employer's offer to modify the job duties as required. We find that the job would have been workable if the worksite assessment recommendations were put in place.

The panel therefore finds that the job duties were suitable work for the worker, taking into account his compensable restrictions. This does not, however, end our consideration of the first issue. The storekeeper position was Job Class 10. The worker's pre-recurrence pay was Job Class 12. Accordingly, even if the worker had accepted the accommodated position offered by the employer, he still would have suffered a loss of earning capacity equal to the difference between the Job Class 10 and Job Class 12 rate of pay. The worker is entitled to wage loss benefits for this loss of earning capacity. As noted earlier, the panel is unsure as to whether the worker would have been paid at level 10 or level 12 if he had reported for work on June 15, 2011. We will refer the matter back to the WCB to determine whether the worker's loss of earning capacity commenced on June 15, 2011, or whether it only commenced 60 days following June 15, 2011. The WCB can make inquiries to determine whether the worker was entitled to be paid at level 12 or level 10 for the first 60 days following his return to the storekeeper position, had he returned to the workplace in June 2011.

The worker's appeal on the first issue is therefore allowed.

2. Whether or not the worker's average earnings have been correctly established.

The second issue before the panel is whether or not the worker's average earnings have been correctly established. As noted earlier, the Average Earnings Policy directs that the method used to establish a worker's average earnings will always be the one that best reflects the worker’s actual loss of earnings. Accordingly, in order for the worker's appeal to succeed, the panel must find that the method used by the WCB to establish the worker's average earnings does not best reflect the worker's actual loss of earnings. We are not able to make that finding.

The average earnings figure used by the WCB was $64,744. This figure was calculated using wage information provided by the employer based on the average wages of 20 workers in the Job Class 12 in 2010. The WCB rationalized that the 2010 actual earnings realized by persons in the Job Class 12 position were an accurate reflection of what the worker would have been earning had he not suffered the recurrence of October 2009.

At the hearing, the worker took issue with this figure. He noted that in previous years, he had earned significantly more. He also felt that using the average wages of 20 workers in Job Class 12 was not accurate as different departments had different overtime and job sharing opportunities. The worker also questioned the veracity of the information provided by the employer.

With respect to the question of the proper time period to apply, while the industry in which the worker was employed may have been thriving in previous years resulting in higher incomes for those years, the worker is only entitled under the Act and WCB policy to receive wage loss benefits based on his average earnings either at the time of the recurrence or at the accident date. As the accident occurred in 2002, the worker's earnings at the time of the recurrence were higher and this is the applicable time period.

When the worker suffered the recurrence in October 2009, there was a work share plan in place. The effect of this work share plan was to reduce the income being earned by everyone in the worker's department. The work share plan was in place from February 1, 2009 to April 10, 2010. When calculating the worker's average earnings, the WCB appeared to apply a "probable yearly earning capacity" as the formula which best represented the worker's loss of earnings. The Average Earnings Policy describes probable yearly earning capacity as:

…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 Act (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.

Schedule "D" to the Average Earnings Policy gives further guidance on probable yearly earning capacity. It reads, in part, as follows:

The probable yearly earning capacity formula forecasts what a worker may be expected to earn for a consecutive 12 month period after the accident. This formula is used when neither regular earning nor average yearly earnings accurately reflect the worker's loss of earning capacity. Examples of when it would be used include:

…

· The worker's employment circumstance at the time of the accident is significantly different from past employment circumstances (e.g. the worker has experienced a career or occupational change, or some other change in circumstances that is likely to affect future earnings).

…

The formula uses the worker's regular earnings or average yearly earnings adjusted to reflect the worker's employment pattern or the earnings and employment pattern of a few similarly employed workers. It also may include presumed employment insurance benefits.

The panel accepts that using the 2010 earnings realized by other similarly employed workers is a fair and just way of determining what the worker would have earned had he not suffered the recurrence. The employment circumstances at the time of the recurrence were significantly different due to economic downturn and the implementation of a work share plan. While the probable yearly earning capacity formula generally calls for using the consecutive 12 month period after the accident (ie. October 2009 to October 2010), the panel accepts that the 12 month period of January 2010 to December 2010 is fair and just, and indeed, is more advantageous to the worker.

At the hearing, the evidence indicated that although there were 20 employees in Job Class 12, there were only 4 other persons employed in the same department and specific Job Class 12 position as the worker. The worker acknowledged that traditionally, he had worked approximately the same amount of overtime and taken the same number of holidays as the other co-workers employed in his department. Based on this information, the panel felt that using the average income of the co-workers in the worker's department would be a more accurate reflection of the worker's probable yearly earning capacity.

Following the hearing, the panel requested information from the employer regarding the earnings realized in 2010 by the other co-workers in the Job Class 12 department where the worker was employed prior to his recurrence. We were provided with two sets of figures, once which included the group leader's income, and one which did not. The numbers showed that the group leader's income differed significantly from the other workers' income and therefore the panel determined that the set of figures which excluded the group leader would be the more accurate reflection of what the worker would have earned.

The figures provided to the panel were as follows: $65,143, 62,237, 64,458 and $64,505 (47,778 + 16,727). It is notable that all of the figures are within a $3,000 range. The average of those numbers is $64,085.75. Accordingly, this figure represents the average income earned in 2010 by co-workers employed in the worker's pre-recurrence Job Class 12 department.

The amount used by the WCB to establish the worker's average earnings was $64,744. This figure is very close to the average income established above, and in fact, is $659 higher. Given that the average income earned by the co-workers was very close to the $64,744 figure used by the WCB, it is the panel's decision that we will not interfere with the average earnings established and applied by the WCB. The number used by the WCB is more advantageous to the worker and we feel it represents a fair and just approximation of his loss of earning capacity resulting from the recurrence.

The worker's appeal on the second issue is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of October, 2013