The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker disagreed with the decision made by the Workers Compensation Board ("WCB") that he was not an apprentice on the date he injured his shoulder and neck in a work-related accident and that his benefit rate should have been reduced. A hearing was held on March 5, 2014 to consider these matters.

Issue

Whether or not the worker should be considered an apprentice; and

Whether or not the worker's benefit rate should be reduced effective August 23, 2013.

Decision

That the worker should not be considered an apprentice; and

That the worker's benefit rate should be reduced effective August 23, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury he suffered to his left shoulder and neck when pulling a hot water tank on December 28, 2009. At the time of his accident, the worker indicated that he was employed as an apprentice gasfitter. His claim for compensation was accepted by the WCB and benefits and services were paid.

On December 3, 2010, a WCB payment assessor documented to the file that she spoke with the accident employer and was advised that the worker was an apprentice gasfitter but was not registered through a provincial course. The worker was an on-the-job apprentice. There were no levels and the worker needed 1800 hours of work before he could write his exam. As long as he passed, the worker would receive his ticket. On the date of the accident, employer noted that the worker had his 1800 hours of work and was to write his exam in January or February 2010. The worker's wages would then have increased to $25.00 per hour. Subsequent wage increases were not scheduled at specific increments but were based on personal development. The employer estimated that the worker could now have been earning about $27.00 per hour and that most gasfitters earn between $25.00 to $31.00 per hour after they receive their ticket.

On January 1, 2011, the WCB implemented an increase to the worker's benefit rate based on having an apprenticeship status.

Subsequently, the WCB obtained information related to the requirements for apprenticeship status. On August 23, 2013, the WCB advised the worker that when his benefits were increased in January 2011, the formal documentation to support his registration in an apprentice or journeyman program had not been verified. As a result, his benefit rate would be reduced effective August 23, 2013 to $667.93 gross per week or $448.39 net per week. On September 3, 2013, the worker appealed the decision to Review Office.

On November 25, 2013, Review Office determined that the worker was not considered to be an apprentice and that his benefit rate should be reduced effective August 23, 2013.

Review Office referred to specific file documentation and WCB policy to support its findings that the worker was not registered with the Manitoba Apprenticeship Board at the time of his injury and that the trade of a gasfitter was not considered to be a designated trade until 2011. As the worker was not registered as an apprentice at the time of his injury, he did not meet the definition of an apprentice as defined in WCB policy 44.80.30.30.

Review Office referred to subsection 45(3) of The Workers Compensation Act (the "Act") with respect to the reduction of the worker's benefits. As it determined that the worker was not considered an apprentice, it felt that subsection 45(3) of the Act was not satisfied and did not apply to adjusting the worker's benefit upward. Review Office found that it was appropriate to reduce or adjust the worker's benefit rate effective August 23, 2013 in keeping with section 45(1) of the Act. On December 16, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

There are two issues before the panel. The main issue is whether or not the worker is considered an apprentice under section 45(3) of the Act. Section 45(3) provides as follows:

Adjustment of earning capacity

45(3) Where the board is satisfied that a worker’s average earnings before the accident do not fairly represent his or her earning capacity because the worker was an apprentice in a trade or occupation, 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 in the trade or occupation.

If the panel finds that the worker was an apprentice at the time of the accident, the WCB will, pursuant to section 45(3), periodically adjust his average earnings in accordance with the established wage he would have earned as an apprentice, until his average earnings reach the prevailing wage of a journeyman.

WCB Policy 44.80.30.30, Prospective Earnings - Apprentices and Youthful Workers (the "Policy"), provides direction as to when a worker may be found to be an apprentice and states:

1. Eligibility under the policy is subject to the following definitions:

(a) i. “Apprentice” in a trade means an apprentice as defined under the terms and conditions in The Apprenticeship & Trades Qualifications Act (i.e., unless the person is declared an apprentice in a designated trade under The Apprenticeship & Trades Qualifications Act, the person is not an apprentice for the purposes of this policy).

ii. “Apprentice” in an occupation means a worker who in all circumstances must complete an “apprenticeship” in order to obtain the licence or professional designation required to work in the occupation. Whether by legislation or the canons/by-laws of a self-governing body, the rules and regulations for the “apprenticeship” must be defined in a similarly strict manner as those contained in the legislation for an apprentice in a trade.

iii. “Apprentice” in an occupation also means a worker who participates in a structured, employer-financed training program in order to work in the occupation.

Worker's Position

The worker was self-represented. He disagreed with the WCB decision that he was not an apprentice at the time of the injury. He advised that he began working for the employer in 2005. He noted that in 2009, an apprentice gas fitter did not have to register with the Apprenticeship Board. He said that the Office of the Fire Commissioner was responsible for gas fitters and that it reviewed hours submitted by an apprentice. He said that he worked under a certified gas fitter and that the next step in his apprenticeship was to attend the program at Red River College (RRC). He advised that the employer registered him in the course at RRC but that he was injured before he could attend. The worker acknowledged that he did not have an apprentice's card.

The worker noted that in 2006, National Occupation Classification (NOC) 725 included gas-fitter as an apprentice in its list of occupations.

Regarding the WCB Policy, the worker said that he was an apprentice under the Policy, pursuant to subsection 1. a) ii. which includes apprenticeship under the "canons of a self governing body."

Employer's Position

The employer was represented by its Office Manager and General Manager. The owner of the firm also participated by teleconference.

The employer representatives confirmed the worker's evidence regarding his duties and role as an apprentice. The employer provided information on the nature of its operations. The employer confirmed that there was no formal contract between the worker and the employer but that the process has changed since the worker was working as an apprentice and that now there is a strict process.

The General Manager answered questions regarding the role of an apprentice and the training provided by the employer. He said that the apprenticeship consisted of hands on learning at the job site.

In a written submission, the employer noted that "At the time that [worker] received his training the Mechanical & Engineering branch was in charge of the trades qualification. And at that time it was optional to register with the Province of Manitoba Apprenticeship Branch."

The employer also noted that the worker had been registered to go to school but was injured in December and the course was to start in February. As a result, the worker could not attend the course.

Analysis

The worker is appealing two issues.

1. Whether the worker should be considered an apprentice?

For the worker's appeal of this issue to be successful, the panel must find that the worker was an apprentice as defined in the Act and WCB Policy. The panel was not able to make this finding. The panel finds that the worker's employment arrangement did not meet the requirements of the Policy, specifically, the employment arrangement does not meet the definitions of "apprentice" in either a trade or occupation as is required by subsection 1.a) of the Policy.

Under subsection 1. a) there are 3 types of apprenticeship.

· The first is an apprentice in a trade. This applies to a worker who has signed a formal apprenticeship training agreement with his or her employer and had the agreement registered with Apprenticeship Manitoba. In this case there was no formal signed apprenticeship training agreement and no registration with Apprenticeship Manitoba.

· The second is an apprentice in an occupation. This applies to a worker who in all circumstances must complete "apprenticeship" in order to obtain the license or professional designation required to work in the occupation. This must be set out by legislation or the "canons/by-laws of a self-governing body, the rules and regulation of the apprenticeship must be defined in a similarly strict manner as those contained in the legislation for an apprenticeship in a trade." The worker submitted that he was an apprentice pursuant to the canons of a self-governing body. The panel finds that the facts of this case do not meet these requirements. The occupation of gas fitting is not governed by a self-regulating body and the program which the worker was participating in was not defined in a strict manner similar to those contained in legislation.

· The third is an apprentice in an occupation which includes a worker who participates in a structured, employer-financed training program in order to work in the occupation. The facts of this case do not meet the requirements of this subsection. There was no evidence of a structured employer-financed program.

The worker referred to the NOC 725 which included gas-fitter in its list of apprentices. This classification does not address the requirements of the Policy.

The panel is not able to find that the worker is an apprentice for the purposes, criteria and definitions of the Policy. Accordingly the worker's appeal is dismissed.

2. Whether the worker's benefit rate should be reduced effective August 23, 2013?

The worker's benefits had been increased on the assumption that the worker was an apprentice. Given the panel's findings on the first issue that the worker was not an apprentice, the panel finds that the worker's benefit rate was appropriately reduced effective August 23, 2013.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 10th day of April, 2014