The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is contesting decisions made by the Workers Compensation Board ("WCB") with respect to his compensation claim and a hearing was held before the Appeal Commission on January 14, 2015 to consider the matters.

Issue

Whether or not the worker's wage loss benefits issued for 2012 are correct;

Whether or not a deemed post-accident earning capacity based on NOC 7412 Bus Driver should be implemented effective July 4, 2012;

Whether or not the worker's wage loss benefits should have been suspended between June 15, 2012 and July 3, 2012; and

Whether or not the worker's retirement annuity has been correctly calculated.

Decision

That the formula used to calculate the worker's wage loss benefits was correct but will need to be adjusted pursuant to the decisions reached on issue 2 and 3;

That a deemed post-accident earning capacity based on NOC 7412 Bus Driver should be implemented effective October 4, 2012 and not effective July 4, 2012;

That the worker's wage loss benefits should not have been suspended between June 15, 2012 and July 3, 2012; and

That the worker's retirement annuity has been correctly calculated.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a skill saw injury that occurred on April 26, 2010 to the dorsum of his right index and middle fingers which was treated with tendon repair and tenolysis. His claim for compensation was accepted and various types of benefits have been paid.

In a memo to file dated January 20, 2012, a WCB adjudicator documented the calculations used to determine the worker's average earnings. The adjudicator noted that the worker was not a permanent full-time employee and was subject to layoffs. She stated:

A review of the worker's gross weekly earnings (average earnings) will be conducted as the worker's earnings have been set up based on the worker working (sic) earning and working an excessive amount of wages and overtime prior to his injury. The worker's period of employment earnings from March 15, 2011 to July 11, 2011 are $1,670.05 per week. The earnings and overtime which has been used to calculate the worker's earnings would not have continued as the worker would have experienced periods of layoff.

[The worker] is not a permanent employee of [the employer]. He was hired in 2009 on a contract basis. Therefore, the worker would be subject to lay off. This is consistent with his longstanding pre-accident career pattern, i.e. he works contract to contract with periods of unemployment in between.

Although the worker had been employed with the company for more than one year prior to his compensable injury, his earnings from the previous years will be used to establish his average earnings. From 2005 to 2009 the worker did not work for [the employer], but was involved in the same industry.

[The worker's] income tax information for the five years prior to the date of injury has been reviewed. Average earnings have been calculated using the 2005 - 2009 income tax information, as average of the worker's previous 5 years of employment in the same industry...Total average weekly earnings 2005 - 2009 (5 years) = $3,502.05 divided by 5 = $700.41/week

On January 26, 2012, a WCB case manager advised the worker that a review of his average earnings for the 5 years preceding his workplace accident had been conducted in accordance with WCB Policy 44.80.10.10 and that effective January 28, 2012, his new weekly wage loss benefit rate would be $466.99 based on average weekly earnings of $700.41. On February 6, 2012, the worker appealed the decision to Review Office.

In early March 2012, the worker's file was referred to the WCB's vocational rehabilitation branch to determine an occupational goal for the worker. Two occupations were considered: A truck driver and a transit bus driver. After meeting with WCB staff, the worker indicated that he was interested in a career as a transit bus driver.

On March 22, 2012, the worker advised his WCB vocational rehabilitation consultant ("VRC") that he would not participate with tutoring, further testing or attending his transit interview as he felt his average earnings of $700.41 per week was unfair. The VRC advised the worker that if he did not participate, his benefits would be suspended. File records showed that a WCB case manager arranged to meet with the worker on April 2, 2012 to discuss his decision not to participate with vocational rehabilitation services and that the worker failed to attend the meeting.

On April 5, 2012, the WCB case manager wrote the worker to advise that his benefits would be suspended as of April 6, 2012 given his decision not to participate in the vocational rehabilitation process. On April 16, 2012, the worker appealed the decision to Review Office. The worker stated that he did not refuse to participate in vocational rehabilitation and that he was more than willing to train for a job as long as it matched the wages he was earning prior to his accident. The worker also indicated that he had been offered a test to see what jobs he could do and that the test had not yet taken place.

The worker's appeal with respect to average earnings was considered by Review Office on April 25, 2012. Review Office stated in part:

...the Review Office notes that the Average Earnings policy enables the board to go back up to 5 years to determine a worker's true loss of earnings. It is the opinion of the Review Office that the decision to use [the worker's] previous years' earnings to calculate his average earnings was correct.

However, the Review Office finds that [the worker's] earnings of only $14,399 in the year 2006 represents a significant aberration from the pattern of employment related income generated by him in the other years 2005, 2007 and 2008. As such, the Review Office determines that [the worker's] average earnings are to be recalculated based upon his T4 and Employment Insurance earnings in the years 2005, 2007, 2008 and 2009 only.

Based on Review Office's decision, the worker's average earnings were recalculated to $806.29 per week retroactive to January 28, 2012.

On April 26, 2012, the WCB case manager advised the worker that given his decision to participate with vocational rehabilitation planning; his WCB benefits would be retroactively reinstated to April 6, 2012.

On May 3, 2012, the WCB case manager advised the worker there was no provision to compensate him for lost employer contributions to a pension plan.

On May 29, 2012, the WCB case manager advised the worker that the WCB would provide him with a vocational rehabilitation plan focusing on NOC 7412 Bus Driver. The case manager noted that the worker had previously expressed interest in this career and that the wages associated with the job were in line with the earning capacity of a truck driver.

File records showed that the worker expressed views that he was not interested in truck driving or operating a transit bus. The worker indicated that he wanted to obtain employment that paid him an hourly rate of $32.88 an hour which was his hourly rate at the time he was injured.

On June 13, 2012 the WCB case manager advised the worker "no further wage loss benefits will be paid until I either receive a letter from you outlining your wishes, or three weeks has passed, whichever comes first. For the purposes of this suspension, the end date of the 3 week period is July 3, 2012."

On June 23, 2012, the worker advised the WCB that he wanted to be retrained as an operator of overhead and tower cranes which would recoup his earnings at the time of his accident.

Following a WCB investigation regarding the training that is required to become a crane operator, the worker was advised on June 25, 2012 that the WCB would not support him in the position as a crane operator. The case manager indicated that NOC 7411 Truck Driver was the most cost-effective plan available and if the worker chose not to participate, a deemed post accident earning capacity of $559.12 would be implemented as of July 10, 2012.

On June 29, 2012, Review Office considered an appeal by the worker with respect to the re-calculation of his average earnings. Review Office found that the worker's average earnings were incorrectly calculated. Based on Review Office's decision, the worker was advised on July 13, 2012 that his benefit rate had been increased to $824.21 per week based on gross average earnings of $1,324.68 effective per week. The worker was also advised that: "Note, despite the change in rate your benefits remain suspended."

In July 2012, the worker outlined his view that truck driving was not an appropriate vocational rehabilitation goal for him as driving caused him stress. The worker also appealed the WCB decision to suspend his wage loss benefits.

In a letter dated July 31, 2012, the worker was advised that effective July 19, 2012, his wage loss benefits would be reinstated but based on a deemed post accident earning capacity associated with NOC 7411 Truck Driver. This reduced the worker's wage loss benefits from $824.21 to $430.73 per week.

On August 22, 2012, the Appeal Commission determined that the worker's average earnings had been incorrectly established. The appeal panel stated in part: "...the best reflection of the worker's actual loss of earnings in the construction industry can be determined by calculating the worker's average earnings in the period preceding November 1, 2010, being the date of recurrence as established by the WCB." See Decision No. 92/12 for further details.

In a letter dated October 3, 2012, the worker was advised that there would be no changes to his average earnings as a result of Appeal Commission Decision No. 92/12.

On October 4, 2012, Review Office outlined the following decisions:

1. That the vocational rehabilitation goal of employment within NOC 7411 Truck Driver was not appropriate.

Review Office accepted the worker's assertion that after paying a substantial amount of money for training as a semi trailer truck driver, he found himself psychologically unsuited for the job. As such, Review Office felt the goal was inappropriate.

2. That the worker's wage loss benefits should have been suspended between June 15, 2012 and July 3, 2012.

Review Office stated that given the events that transpired, it was appropriate to suspend the worker's wage loss benefits effective June 15, 2012. It also felt, however, that the worker's wage loss benefits should have been reinstated on July 4, 2012 as opposed to July 18, 2012.         

        3.     That a deemed post accident earning capacity based on NOC 7412 Bus Driver should be implemented effective July 4, 2012     

Review Office indicated that it was appropriate to deem the worker but not as a truck driver. It felt that the worker's earning capacity should be based on NOC 7412 Bus Driver, that being $505.16 per week. Review Office indicated that the worker's skill set was consistent with the requirements of this occupation.

In February 2013, the WCB advised the worker that he was entitled to a retirement annuity effective March 17, 2013 as he had received wage loss benefits for 104 weeks.

On April 8, 2013, the worker expressed disagreement with the wage loss benefits he received in 2012. The worker noted that he had only received $36,507.50 and his pre-accident income was $68,848.00. The worker felt that he was owed $32,340.50. In a WCB decision, the worker was advised that his average earnings had been correctly calculated and that no change would be made to his partial wage loss benefits.

On April 23, 2013, the worker was advised that further vocational rehabilitation services were not warranted as the occupation of a bus driver was within his restricted physical abilities and was the most cost effective plan.

In July 2014, the worker outlined his views that the wage loss benefits he received in 2012 were not correct. The worker also stated that he disagreed with his retirement annuities.

On October 2, 2014, Review Office determined that the worker's wage loss benefits issued for 2012 were correct. Review Office noted that the WCB had reviewed the Appeal Commission decision and determined that the method used to calculate the worker's average earnings in accordance with the June 2013 Review Office decision was consistent with the direction provided by the August 2012 Appeal Commission decision (T4 income, EI income, and travel allowances earnings in the years 2007, 2008, 2009 and 2010). Review Office also stated that it agreed with the October 3, 2012 decision that the average earnings of $1285.80 per week were correct and that no further adjustment was due as a result of the Appeal Commission decision.

Review Office also determined that the worker's retirement annuities were correct. Review Office noted the worker's contention that the WCB should have made contributions since 2010, the year he was injured. Based on WCB policy, Review Office determined that the worker's annuities contribution funded by the WCB were correct. It stated there were no provisions in the Act that would allow for contributions prior to a worker being in receipt of wage loss benefits for 104 weeks.

On October 8, 2014, the worker appealed WCB decisions dated October 4, 2012 and October 2, 2014 to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

In dealing with this appeal, the appeal panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker has an accepted claim arising from an injury that occurred in April 2010. He is appealing the WCB decisions regarding calculation of his wage loss benefits, deemed post accident earnings, suspension of wage loss benefits and calculation of his retirement annuity.

Applicable provisions of the Act include:

• Subsections 4(1), 4(2) and 39(2) which provide that workers injured in the course of employment are entitled to wage loss benefits until the WCB determines that their loss of earning capacity ends.
• Subsection 27(20) which provides that the WCB may provide academic and vocational training, or rehabilitation for injured workers.
• Section 22 which outlines the duties of an injured worker to co-operate and mitigate the consequences of a work injury, and provides for suspension if the worker fails to co-operate.
• Section 42 which deals with retirement annuities for injured worker.

Applicable WCB policies include:

• Policy 43.000, Vocational Rehabilitation, which describes the terms and conditions of academic, vocational and rehabilitative assistance available to injured workers'
• Policy 44.80.30.20, Deemed Earning Capacity, which describes when a worker will be deemed capable of earning an amount that he is not actually earning and how the deemed earning capacity has been determined.
• Policy 44.80.30.10, Establishing Post-Accident Capacity which describes the methods that will be used to calculate a worker's post-accident earning capacity.
• Policy 44.10.30.60, Mitigation, which explains the obligations of the worker and WCB, and provides for potential consequences to a worker of non-compliance with the Act.
• Policy 44.100.20, Annuities, which deals with the establishment and operation of annuities for injured workers.

Worker's Position

The worker was self-represented. He outlined his position on the issues and answered questions from the panel.

The worker disagreed with the WCB's wage loss calculation. He feels that he should be compensated on the basis of the income he earned at the time of the accident. With respect to re-employment, retraining and job search, he wants the WCB to assist him in finding a job that pays the hourly rate he was earning at the time of the accident. In discussions, he did acknowledge the average earnings and appeared to accept that average earnings was the appropriate goal.

With respect to NOC 7412 Bus Driver, he acknowledged he could perform these duties and has been working as a school bus driver since January 2013. Initially he worked for a private firm but since July 2014, works for a local school division. He averages between 20 to 22 hours per week during the school year (10 months). He is willing to work extra hours during the school year and in the summer, but extra hours are assigned on a seniority basis so he has not been able to increase his hours to 40 hours per week or his employment to a full 12 months. He does get some school field trips and also trips that take passengers to special events, such as, sporting events.

He advised that he has applied for a bus driving position with a major urban bus service but has not been successful in the interview process. He was disappointed with the assistance he received from the WCB in support of his applications. He states that the WCB has not provided him with help finding employment and has provided no training. He advised that he is currently taking adult upgrading classes which he found without the help of the WCB.

Regarding the suspension of his benefits from June 15, 2012 to July 3, 2012, he says that he did cooperate. He advised that he responded to the request for suggestions on an employment goal with the request to retrain him as a crane operator. He said the WCB refused to consider this request. The worker acknowledged that he did not take any steps to investigate the qualifications for this job nor to find an employer to sponsor him in a crane operator training program.

He said that he is nervous on the road (highway) and was not able to work as a truck driver. He has not considered working as a courier driver, noting the wages are very poor for courier drivers.

Regarding the calculation of his retirement annuity, the worker was concerned that the calculations did not cover contributions from the date of the injury. It was pointed out to him the Act sets out a qualifying period equivalent to 104 weeks on wage loss, before the worker's annuity is established.

Employer's Position

The employer is no longer in business in Manitoba.

Analysis

1. Whether the worker's wage loss benefits issued for 2012 are correct?

For the worker's appeal of this issue to be approved, the panel must find that the WCB used the wrong formula in calculating his benefits or did not pay him for the correct period.

The panel found that the formula used by the WCB in calculating the worker's wage loss benefits was correct and in accordance with the Act and policy, including the recalculation of the worker's average earnings. This calculation was done in accordance with Appeal Commission Decision 92/12 which dealt with the worker's average earnings. The result is that the worker's earnings are based on the worker's income in 2007, 2008, 2009 and 2010. The panel finds that the worker's earnings were properly calculated at $1285.80 weekly and have been properly adjusted since being established.

However, given the panel's decisions in Issues 2, 3 and 4 regarding the correct periods, the amount of the worker's wage loss benefit payments for 2012 must be re-calculated.

2. Whether a deemed post-accident earnings capacity based on NOC 7412 (Bus Driver) should be implemented effective July 4, 2012?

For the worker's appeal to be approved the panel must find that it was not appropriate for the WCB to deem the post accident earning capacity based on NOC 7412 Bus Driver effective July 4, 2012. The panel was able to make this finding.

The panel notes this decision involved two determinations:

• whether NOC 7412 Bus Driver is an appropriate occupation for the purpose of deeming the worker, and
• whether July 4, 2012 was the appropriate effective date for the deeming to begin.

Regarding NOC 7412 Bus Driver, the panel finds this was an appropriate occupation for the worker and was appropriate to use for the purpose of deeming the worker's post accident earning capacity. The panel notes that the worker expressed an interest in bus driving in 2006, many years before the injury. As well, the worker is currently employed as a bus driver which confirms his aptitude and ability to perform this occupation. The worker is not satisfied with his income from this occupation. He advised that he has not been able to increase his hours to full-time and that his pay rate is much lower than his pre-accident pay rate. The panel finds there is potential for the worker to increase his hours based upon his evidence and the Earning Capacity Assessment dated April 13, 2012. The panel also notes the worker earns a higher hourly rate than that used to calculate the deem.

Regarding the effective date of July 4, 2012, the panel disagrees with this date. The panel notes that this date was retroactively determined by the Review Office in its decision of October 4, 2012. The panel finds that a more appropriate date for implementation of the deemed earning capacity is October 4, 2012, the date upon which the Review Office determined that NOC 7411 Truck Driver was not appropriate and confirmed NOC 7412 Bus Driver as being an appropriate occupation for the worker. The panel notes that limited assistance had been provided to the worker in his attempt to find employment in the field, and that the discussions in the preceding months had focused primarily on truck driving and to a lesser extent, crane operator.

The worker's appeal of this issue is successful, in part.

3. Whether the worker's wage loss benefits should have been suspended between June 15, 2012 and July 3, 2012?

For the worker's appeal of this issue to be approved, the panel must find that the worker did not refuse to cooperate with the WCB during the period of the suspension.

The panel was able to make this finding. The panel notes that on June 13, 2012, the WCB case manager wrote to the worker advising that "no further wage loss benefits will be paid until I either receive a letter from you outlining your wishes, or three weeks has passed, whichever comes first. For the purposes of this suspension, the end date of the 3 week period is July 3, 2012. Unlike the last time your benefits were suspended, no retroactive payment of wage loss benefits will be paid should you express a wish to participate."

The panel notes that in response to the June 13, 2012 letter, the worker wrote to the WCB in a letter dated June 23, 2012 indicating an alternate occupation as a crane operator. The panel acknowledges that the WCB did not consider the occupation to be reasonable. The panel considers that the plan, in effect at that time, to deem the worker as a truck driver was not ultimately reasonable as later determined by the Review Office. The panel finds that the worker's benefits should not have been suspended at that time. Although his suggestion was found not to be appropriate, the worker was nonetheless participating to the best of his ability.

The worker's appeal of this issue is approved. The worker is entitled to benefits for the noted period.

4. Whether the worker's retirement annuity has been correctly calculated?

For the worker's appeal of this matter to be successful, the panel must find that an error was made in the calculation of the annuity. The panel was not able to make this finding.

At the hearing the worker expressed concern that the WCB made a mistake in calculating his annuity. He thought the annuity contributions should begin from the accident date.

The panel notes that Subsection 42(1) of the Act defines the "qualifying period" as the total period of 24 months during which the worker received wage loss.

Subsection 42(2) provides that where wage loss benefits are paid to a worker after the qualifying period, the WCB must set up an annuity for the worker.

The impact of these provisions is that the WCB does not set up the annuity until the worker has received 24 months (104 weeks) of wage loss benefits. Any period during which the worker has returned to work and is not receiving wage loss benefits is not included in the qualifying period.

The panel reviewed the date upon which the annuity was commenced and finds that it was established in accordance with the Act. The panel finds that the annuity contributions are correct. The panel notes due to the decisions on issue #3 and the re-instatement of benefits for a 3 week period during the qualifying period, an adjustment may be required.

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 23rd day of January, 2015