The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her weekly benefit rate of $128.71 had been correctly calculated. A hearing was held on September 4, 2014 to consider the matter.

Issue

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

Decision

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

Decision: Unanimous

Background

On July 9, 2013, the worker sustained an injury to her back during the course of her employment as a healthcare assistant.

On September 6, 2013, the worker was advised that based on a review of her claim, her WCB benefit rate was established at $137.44 per week and her gross earnings were $144.83 per week. The letter further stated:

Your 2012 yearly earnings were $13,076.72 / 52 wks = $251.48/week. In March 2012 you went from working full time to working on a casual basis so the above earnings would not represent your current employment situation of working only on a casual basis. Therefore these earnings were not used in the calculation of your WCB benefit rate.

On September 16, 2013, the worker asked Review Office to reconsider the September 6, 2013 decision. The worker submitted that her child was now attending school full time and she had daycare for before and after school. Previously, she had not picked up many shifts with the employer because she was unable to obtain daycare. At the time of her injury on July 9, 2013, she was intending to pick up two to three shifts per week. The average earnings rate used by the WCB did not even equate to one day per week. The worker asked the WCB to reconsider her benefit.

In November 2013, the worker's claim was merged into a previous 2006 claim as the WCB determined that the July 2013 back injury was a recurrence of her 2006 back injury. The worker's average earnings were confirmed at $137.44 per week based on the previous 12 months earnings as a casual employee.

On December 19, 2013, Review Office determined that the worker's average earnings had been calculated correctly using her last 12 months earnings, resulting in a weekly benefit rate of $128.71. It noted that the worker's earning pattern was inconsistent, and thus averaging her earnings over the prior 12 months was seen to be an accurate reflection of her loss. On April 21, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on September 4, 2014.

Following the hearing, the appeal panel requested that the employer's advocate provide it with additional information regarding the number of shifts the worker filled from March 2012 to July 2013. The requested information was later received and was forwarded to the worker and her advocate for comment. On October 30, 2014, the panel met further to discuss the case and rendered its decision on the issue under appeal.

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.

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 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.

The worker’s position:

The worker was assisted at the appeal by a worker advocate. It was submitted that on July 9, 2013, the worker suffered a recurrence of her 2006 compensable back injury which forced her to be off work. The WCB accepted the recurrence and established the worker's wage loss benefits based on her previous 12 month average weekly earnings. WCB Policy 44.10.20.50, Recurring Effects of Injuries and Illness (Recurrences) was not applied to the worker's recurrence as she had voluntarily changed her status from full-time to a casual worker effective as of March 2012. The worker did not take issue with that adjudication. It was acknowledged that the worker volunteered to change her status from full time to a casual position in the hope that working fewer hours would ease her ongoing back pains that had resulted from her previous compensable back pains. Unfortunately, due to the lack of childcare, the worker was unable to work all of the available shifts offered to her from March 2012 to April 2013. In April 2013, she was able to obtain daycare and so she started to work additional shifts made available to her until July 9, 2013. It was submitted that during the three months from April 5 to July 9, 2013, the worker was able to work all the hours offered to her and that she increased her average earnings as a result. The worker's position was that her weekly average earnings should be based on her most recent previous three months of earnings, and not on the previous 12 months. If the worker had not been reinjured on July 9, 2013, she would have continued to work an increased number of shifts.

The worker's advocate relied on the Average Earnings Policy to state that "the formula that best represents the worker's loss of earnings" should have been used. In this case, that would have been the three months previous to the worker's accident date in July.

The employer's position:

The employer was represented by an advocate who did not appear at the hearing but provided a written submission. The employer's position was that in accordance with WCB policy, the WCB correctly calculated the worker's benefit rate by using her 12 months of earnings prior to the recurrence. It was submitted that this was an accurate reflection of her established actual earnings.

Analysis:

The issue before the panel is whether or not the worker's average earnings have been correctly calculated. 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 question in this case surrounds whether the casual shifts the worker filled in April, May and June 2013 establish enough of a pattern to satisfy the panel that she had formed the firm permanent intention to work an increased number of hours. Unfortunately, the panel finds that the three months was not sufficient to establish a pattern of increased employment upon which her average earnings could be based.

When reviewing the number of shifts filled by the worker from March 2012 to July 2013, an obvious pattern of increased shifts is not readily evident. In April and May 2013 the worker filled six shifts and in June 2013 she filled seven. While in previous months, she did not usually work that many hours, she did work 5 shifts in April 2012 and 5 in March 2013. Accordingly, the six or seven shifts per month she worked post-April 2013 were not significantly different than the number she had worked in other months.

The worker's evidence at the hearing was that she could basically have as many shifts as she wanted as she had a significant degree of seniority and that shifts were allocated on that basis. Prior to obtaining daycare in April 2013, the worker stated that she would make herself available for shifts on days when she knew her husband would be available to care for the children. This would be mostly on weekends. She did not usually make herself available on weekdays as she was not able to take these shifts due to the unavailability of daycare. Starting in April 2013, she had two days of daycare per week. The worker's evidence was that she did not try to fill every childcare day with a casual shift. She would only take a casual shift if she did not have anything to do that day.

After the hearing, the panel requested from the employer a complete summary of the dates and times of the casual shifts filled by the worker. The summary indicated that all of the casual shifts filled by the worker were on weekdays and almost all were a regular 7.75 daytime shift. There were no evening or weekend shifts. The panel was unable to identify a change in the type of shifts accepted by the worker pre and post April 2013. The data does not confirm the worker's evidence in this regard.

When looking at the shifts worked pre-April 2013, in December 2012 and January 2013, the worker only filled one shift. There may be a number of reasons for this. It may have been that there were no childcare alternatives for these dates. But it also may have been that the worker was simply had "other things to do" during those months. Whether or not she would make herself available for a casual shift was entirely discretionary on the part of the worker. Unfortunately, the short three month window proposed by the worker as the time period on which to establish her average earnings does not provide enough evidence of intention upon which to base a pattern. With all of her children out of school during the summer, the worker may have chosen to accept fewer shifts in order to spend some holiday time with them. We just simply don't know.

Overall, the small window of three months is just not a sufficient amount of time upon which to establish a work pattern for the purpose of calculating average earnings. While the panel accepts the worker's evidence that it was her long-term intention to work an increased number of shifts, mere intention is not enough. There needs to be a more established proven pattern than just three months.

The panel acknowledges the advocate's submission regarding making a decision based on such period of time as is fair and just, but we find that it is far too speculative to extend the three month pattern out as a basis for the average earnings calculation.

We therefore find that the previous 12 month average used by the WCB is appropriate and that the worker's average earnings have been correctly calculated. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 27th day of November, 2014