Decision #06/16 - Type: Workers Compensation
Preamble
The worker is appealing three decisions made by the Workers Compensation Board ("WCB") whichdeal with his compensable claims for injuries occurring in 2011 and 2013. A hearing was held on December 2, 2015to consider the worker's appeals.
Issue
Claim for injury occurring December 5, 2011:
Whether or not the worker is entitled to wage loss benefits.
Claim for injury occurring March 14, 2013:
Whether or not the claim is acceptable.
Claim for injury occurring September 30, 2013:
Whether or not the worker's average earnings have been correctly calculated.
Decision
Claim for injury occurring December 5, 2011:
That the worker is not entitled to wage loss benefits.
Claim for injury occurring March 14, 2013:
That the claim is not acceptable.
Claim for injury occurring September 30, 2013:
That the worker's average earnings have been correctly calculated.
Decision: Unanimous
Background
Claim for injury occurring December 5, 2011:
The worker filed a claim with the WCB for a left shoulder injury that occurred at work on December 5, 2011 when he was knocked down to the ground while pushing boars out of a truck trailer. The description of accident was confirmed in the Employer's Incident Report dated December 20, 2011.
On December 16, 2011, the worker sought medical treatment for his left shoulder injury and was diagnosed with a left shoulder rotator cuff strain. In a follow up examination on January 6, 2012, the treating physician stated that an MRI assessment was being arranged.
On February 14, 2012, a WCB case manager called the worker to discuss his claim. The worker stated that he did not miss any time from work following the accident and was performing his regular duties. The worker stated he had an MRI scheduled for June and that he would probably cancel the appointment. The worker was asked how his range of motion was at shoulder height and he said it really hurt at first. After awhile he got over a plateau of pain and made it "over the hill" where it was not bad anymore. The worker thought he was progressing well and was not concerned.
On May 15, 2012, the worker called the WCB to report that he had met with his doctor and together they decided to cancel the MRI. The worker stated his shoulder was greatly improved and there was no point in proceeding with the MRI.
On December 15, 2014, the worker spoke with a WCB case manager requesting compensation benefits for the time he missed from work due to his left shoulder injury. The case manager advised the worker that according to file information dated February 14 and May 15, 2012, he advised the WCB that he did not miss time from and was back at his regular work duties. The worker replied that the reason he told the WCB that he did not miss time from work was because he was trying to spare his employer the claim costs. The worker advised that his employer could verify that he only worked approximately 2 loads per month for some time from the date of the injury to the end of the claim.
In a memo to file dated December 16, 2014, a WCB case management representative ("CMR") documented that he spoke with a person from the employer's payroll department and they did not have any documentation to support that the worker missed any time due to a workplace injury between December 5, 2011 to May 15, 2012. The CMR also documented that he spoke with the accident employer's owner who said they did not keep track of this sort of thing and does not recall the worker missing any time from work. The owner stated that the worker was a very good employee and always took trips. He was not the type to say no to work.
In a decision dated December 16, 2014, the worker was advised of the WCB's position that he was not entitled to wage loss benefits as he had no loss of earning capacity in relation to the December 5, 2011 workplace injury. The decision was based on the findings that the worker initially reported that he did not experience time loss in relation to his compensable injury and the recent confirmation by the employer that he did not miss time from work due to a workplace injury. On February 3, 2015, the worker appealed the decision to Review Office.
In March 2015, Review Office determined that the worker was not entitled to wage loss benefits in relation to the December 5, 2011 workplace accident. Review Office referred to the file evidence that following the workplace accident the worker continued to perform his regular duties (memos on file dated February and May 2012). Review Office stated the file information indicated that the worker did not have further medical follow up in relation to the workplace injury beyond what was documented to the file. Based on the totality of evidence, Review Office was unable to establish that the worker had time loss from work as a result of the compensable injury.
Claim for injury occurring March 14, 2013:
On June 10, 2014, the worker filed a claim with the WCB for a right shoulder/rotator cuff injury that he suffered at work on March 14, 2013. The worker stated that he delayed in reporting the accident because he felt it was the same injury as his left shoulder. He had to wait six months to get an MRI. The worker indicated that the WCB should have had enough experience to know that he needed an MRI sooner than six months. No one told him. He was not aware of the process. He did not have any knowledge.
The worker described the accident of March 4, 2013. "I was on the top chute of a loading chute...I'm at the top and I put 20 sows into the trailer to get gated. I was still outside the trailer. About 3-4 sows didn't want to go thru. They turned around and came right back at me, quick enough that I didn't have time to get out of the way. One knocked my legs out from underneath me. I grabbed the top board of the chute with my right arm. When the pig disappeared from under me, my right hand snaps down. All the weight went on my right shoulder. This incident caused me to injure my right shoulder and rotator cuff. I am right handed."
In a medical report to the WCB dated April 10, 2014, the treating orthopedic physician stated: "[The worker] has a massive chronic irreparable left rotator cuff tear, and based on his clinical examination, almost certainly he has the same on the right. He has compensated quite well for this tear and is fairly functional despite the injury."
When speaking with a WCB case manager on June 17, 2014, the worker indicated that his right shoulder mechanism of injury was the same as his left shoulder claim but a different point in time. The date of injury was approximately 6 months before September 2013. The worker said he did not file a claim right away as everyone gets hurts at work and it would be ridiculous if everyone "whined" every time something happened.
Regarding medical treatment, the worker stated that he went to see a doctor in Winnipeg for his left shoulder (previous claim) and he did not mention anything to the doctor about his right shoulder. During that examination, the doctor mentioned restriction in his right shoulder. The worker mentioned that in regard to his right shoulder, this doctor would be the only one who knew about it. The worker remembered that there may have been some people around at the time of the accident but they were not close enough to see anything or remember anything.
In Claim Notes dated June 20, 2014, a WCB adjudicator documented information she obtained from the worker's treating physiotherapist.
In a decision dated June 23, 2014, the worker was advised of the WCB's position that his claim for compensation was not acceptable. The adjudicator indicated that based on the results of her investigation, Compensation Services was unable to confirm an accident occurred at work. The adjudicator noted that while the worker's physiotherapist acknowledged an issue concerning his right shoulder, she was unable to provide an accident history related to this issue. In addition, the worker was unable to provide a specific accident date and admitted he did not report this injury at the time it occurred nor did he seek prompt medical attention. As a result of these findings, his claim was disallowed. In February 2015, the worker appealed the decision to Review Office.
On March 26, 2015, Review Office determined that the claim for compensation was not acceptable. Review Office concluded that the worker's right shoulder symptoms are likely the result of degenerative changes plus the fact that there was no witnesses, no medical follow up and no evidence of disability for over a year after the reported event, Review Office was unable to establish an accident occurred in March of 2013.
Claim for injury occurring September 30, 2013:
On September 30, 2013, the worker's truck and trailer overturned in a work-related motor vehicle accident. As a result, the worker suffered injuries to his left arm and shoulder along with a collapsed lung and broken ribs. His claim for compensation was accepted and wage loss benefits were paid.
Based on information supplied by the accident employer, the worker's average earnings was established at $58,291.21. This equated to $1,120.98 average weekly earnings. After deductions for probable income tax, CPP and EI premiums, the WCB calculated the worker's wage loss benefit rate at 90% of net to be $736.79 weekly.
After verification of the worker's income tax returns for 2012, the worker's annual earnings were
$58,291.21 and that he had a deduction of $7,748.00 for "other allowable expenses." This deduction reduced the worker's average earnings by the amount of this deduction. Based on the allowable expenses deduction, the worker's weekly wage loss benefits were decreased to $650.29, effective December 24, 2013. The worker disagreed with the new benefit rate and an appeal was filed with Review Office.
On January 30, 2015, Review Office determined that the worker's average earnings had not been calculated correctly. Review Office found that the Regular Earnings formula described in the Average Earnings Policy was the correct method to use in the average earnings calculation as it was the one that best reflected the worker's actual loss of earnings.
Initially, Review Office noted that the worker's gross earnings for the 2012 taxation year was $58,291.21, however, the worker's accident occurred at the end of September 2013, 10 months into the 2013 taxation year. The employer submitted a random sampling of the worker's earnings in four biweekly pay periods in 2013, before the date of the accident. The biweekly average of these four periods was $2,659.30 which equated to annual earnings of $69,141.73. Review Office initially found that this was the most accurate reflection of the worker's loss of earnings immediately before the accident and reflected his average earnings.
Review Office was unable to find any authority in the Act or in the Net Average Earnings Policy to allow the deduction of "other allowable expenses" from a worker's average earnings.
Review Office further determined that there was no basis to add vacation pay into the calculation of the worker's average earnings as vacation pay was already included in the yearly gross earnings.
In a subsequent Review Office decision letter dated February 6, 2015, the worker was advised as follows:
"In applying the average yearly earnings formula, the WCB uses the higher earnings amount of the 12 months prior to your injury or your calendar year earnings. In your case your 2012 T4 earnings are used which equal $58,291.21. Review Office finds this is a more fair and accurate reflection of your income. Therefore, the previous annual amount referred to in my prior decision of $69,141.73 will not be used when establishing the payment of your wage loss benefits. Rather, the correct amount is $58,291.21.
Your net average earnings will be calculated in accordance with the Net Average Earnings Policy, by deducting probable income tax, CPP and EI premiums from your average earnings of $58,291.21."
In 2015, the worker filed appeals with the Appeal Commission regarding the decisions made by Review Office regarding his 2011 and 2013 compensable claims and an oral hearing was arranged.
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.
This appeal consists of three issues. The worker has 3 claims. He is seeking:
- Wage loss benefits on his 2011 left shoulder claim
- Acceptance of a 2013 right shoulder claim; and
- A review of his average earnings on his accepted 2013 left shoulder claim
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 44.40.10, Evidence of Disability, provides that "Compensation benefits are payable only when there is medical or similar evidence of disability arising from a compensable incident or condition."
With respect to the third issue, 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."
Worker's Position
The worker was self-represented. He confirmed the issues to be addressed but noted that he has lost income from each of the 3 accidents.
Issue 1. Whether the worker is entitled to wage loss benefits with respect to his December 5, 2011 accepted claim?
The worker explained that this injury occurred when he was unloading a delivery of small livestock in the United States. The animals weighed approximately 200 pounds each and were loaded on to a three deck trailer. He described the accident which resulted in an injury to his left shoulder.
In a response to a question regarding his loss of earnings the worker replied:
"Okay, first of all, the problem with the wage lost, the whole problem with the wage loss thing, I can sum it up pretty much in a nutshell, why you’re searching for proof or information of my wage loss is because, if you’ll note, I didn’t miss any time.
Or, that’s not true. Didn’t miss any recorded time. I can say that the wrong way. This is because of the nature of the relationship I had with my employer. I didn’t want my employer to take a time loss accident against their record."
The worker told the panel that the nature of the injury was deceiving, "as in you always think you’re getting better," but the only thing that's getting better is your range of motion. He said that he did not realize he had more damage. He said there is no pain as long as "all you have to do to stop pain or anything is just sit still."
He also told the panel that there’s evidence he actually missed work, but because he didn’t want to have his employer penalized with a time lost claim, he just "shut up about lost time work."
He noted that his physician indicated that he was not capable of working but that he did work by modifying his duties.
In answer to a question about how the panel can calculate his time loss the worker replied:
"... that’s going to be really difficult for you people, okay? I know I missed it. But for you people, and the reason is really plain, and that is because I was trying to purposely not get the time recorded so I wouldn’t get the employer in trouble."
The worker explained that he would just ask for the next load off when he was unable to work without disclosing the reasons for the request.
He explained that he would miss two trips a month. He said:
"They’re usually, basically, eight trips a month. If I was around an injury, I could have missed four or five, like, you know. But what I tried to do was average it down, and in my appeal for it I just said, I said two."
Issue 2. Whether the worker's claim for injury occurring on March 11, 2013 is acceptable?
The worker advised that he injured his right shoulder while loading animals in much the same way as he injured his left shoulder in 2011. He did not initially claim for this injury because as he had done with this left shoulder injury, he tried to work through the injury. He commented that:
"And I said, well, you know, I worked through the first one and I’m going to try get through this one. "
Regarding the date of the accident the worker advised that:
"This is what I used to, because when I had the September 30 injury, my right shoulder had just started to get where it was supposed to be on recovering. And I knew that would have took six months. And that’s what I used to go back and say, okay, six months back is when it would have happened. That’s why you won’t find specific things in there, is because it was, even though it's sitting down, it’s March 14."
The worker advised that he did not obtain medical treatment because of his experience in working through his left shoulder injury. He said that he completed the trip but did not go out on the next trip.
Issue 3. Whether the worker's average earnings related to his September 30, 2013 claim have been correctly calculated?
The worker explained that he drove to different locations and that this could impact his earnings. He said that:
"And that’s these three different destinations. They only varied in moneywise by about $100.00, but they, one of them was about a half a day longer. But as far as you could get back legally with your hours is about Grand Forks or Fargo, in between Fargo and Grand Forks."
He explained that this meant he had to stop and could not make it back home that day. He explained that one stop was considered better because you did not have to clean-out your trailer yourself. He also advised that in recent years he only hauled pigs which was better than hauling cows. He also indicated that the employer tried to share the loads and destinations fairly with its full-time drivers and tried to keep them working.
He said that he did not drive cattle loads. He drove pig loads, which resulted in higher per load pay.
The worker advised that he believes the first Review Office decision on his earnings is correct. He said that this decision was fair and reasonable.
The panel asked the worker about the income records provided by the employer for the period October 3, 2012 to September 18, 2013. The worker indicated that the pay periods where his income was lower are because he took fewer loads due to his injury. The worker estimated that he missed 2 to 3 trips a month because of problems related to his shoulders. He said that his employer always had loads and that he was never told that they have no work for him.
The worker was asked about the difference between his 2011 and 2012 gross incomes, specifically, why his 2012 income was higher than his 2011 gross income, given that he believed he missed 2 loads a month after the 2011 injury. The worker responded that it may be because he took time off in December 2011 after the 2011 accident.
Employer's Position
Employer was represented by a advocate. The employer's representative said that for the record, the employer considered the worker was a very good employee. He noted that the worker expressed the opinion that the employer was a good employer. He advised that the employer did not discourage its employees from making legitimate time loss claims. He suggested that the worker's concern about time loss claims was misguided.
Issue 1:
Regarding the 2011 claim, the employer's representative submitted that:
"There is very little in the way of medical information on this claim, and certainly, not enough to allow long-term time loss for the injury that occurred. It was initially diagnosed as a left shoulder strain, with a possible tear, but the tear was never really substantiated. Of course, strain injuries don’t typically last for several months or years."
The employer representative said that the worker was able to basically do his regular duties for several months following the 2011 accident, without serious difficulties, but did get assistance on occasion from a co-worker.
He advised that the employer has no record of time loss.
The employer representative also noted that there was an MRI planned, but it was cancelled, apparently, because the worker had been progressing well in his recovery from his shoulder injury. He said there is no way to tell if the worker had a tear without the MRI taking place back then.
He submitted that there is no basis to consider a wage loss claim on this file.
Issue 2:
The employer representative advised that the employer has no knowledge or information on the 2013 right shoulder claim. The worker did not report the injury to the employer at the time of the accident. He noted that the worker reported the claim many months later, after the 2013 left shoulder injury. He noted that the worker did not seek medical attention for this injury at the time of the injury. He advised that the employer has no record of time loss for this claim.
Issue 3:
The employer representative advised that the employer will defer to the WCB's Average Earnings Policy on this issue. He advised that the employer made an effort to give their drivers as much consistent work as possible. He noted that like any businesses, there was some ebb and flow to it. He did not have details about the allocation of work.
Analysis
Issue 1. Whether the worker is entitled to wage loss benefits with respect to his December 5, 2011 accepted claim?
For the worker's appeal of this issue to be approved, the panel must find that worker sustained a loss of earning capacity after the workplace accident. The panel was not able to make this finding for the reasons that follow.
The panel reviewed the worker's 2011 claim file and notes that the worker was diagnosed with a significant left shoulder strain injury and was considered to be disabled from work. However, the information on the file from the worker, indicates that he did not miss work and that his shoulder injury improved. The panel also notes there was no subsequent medical information on the file authorizing the worker to miss work.
The employer was contacted by the WCB and advised that they had no information indicating that the worker was unable to work due to the injury. The employer advised that he was aware that the worker received assistance from co-workers with certain tasks. The employer representative did indicate, at a later time, that the worker missed time due to a sore shoulder and his father's funeral.
When asked about specific dates that he missed work due to the injury, the worker advised that he had no records of missed dates. He said that he would turn down 2 or 3 loads each month due to pain from his shoulder injury.
The panel reviewed the worker's employment records and specifically his gross earnings for 2011 and 2012. The records indicate that the worker earned more income in 2012 than in 2011, despite the worker's position that he missed 2 loads per month after his injury. The panel finds that this information does not support the worker's assertion that he missed significant work due to the injury.
The panel notes that WCB Policy 44.40.10, Evidence of Disability, provides that "Compensation benefits are payable only when there is medical or similar evidence of disability arising from a compensable incident or condition."
Considering all the evidence, including the worker's evidence at the hearing, the panel is unable to find, on a balance of probabilities, that the worker sustained a loss of earning capacity due to the 2011 injury. There is no reasonable evidence to support the worker's request and the available evidence does not satisfy the requirements of WCB Policy 44.40.10.
The worker's appeal of this issue is dismissed.
Issue 2. Whether the worker's claim for injury occurring on March 11, 2013 is acceptable?
For the worker's appeal of this issue to be approved, the panel must find, on a balance of probabilities, that the worker sustained a workplace injury on March 14, 2013. The panel was not able to make this finding for the reasons that follow.
The worker indicates that he injured his right shoulder in a workplace injury and missed time from work due to this injury. He provided a detailed description of the accident. There is, however, no other evidence to support this claim. The worker acknowledges that he did not report the accident to his employer and did not seek medical attention. He advised that he determined the date of the accident on the basis of when his motor vehicle accident occurred. He believed the right shoulder occurred six months before the motor vehicle accident when he was loading livestock.
The panel reviewed the worker's bi-weekly income information for the period after the alleged injury. The panel found that the information does not show a decrease in income in the months following March 2013, which would demonstrate that the worker missed time from work.
The panel is not able to find, on a balance of probabilities, that the worker was injured at work on March 11, 2013.
The worker's appeal of this issue is dismissed.
Issue 3. Whether the worker's average earnings related to his September 30, 2013 claim have been correctly calculated?
The issue before the panel is whether the worker's average earnings have been correctly calculated. For the worker's appeal to be successful, the panel must find that the calculation is not correct. The panel was not able to make this finding.
At the hearing, the worker stated that the initial Review Office decision was correct and that he ought to be compensated at the earnings of $69,141.00. He disagreed with Review Office's subsequent decision.
The panel reviewed the actual bi-weekly payments for the 12 months prior to the accident and his income tax information for 2011 and 2012. The worker's employment earnings for the 12 month period before the accident were $54,393.05. His total earnings as noted on his income tax return for 2011 was $54,336.00 and for 2012 was $58,291.00.
The panel finds that in accordance with WCB Policy 44.80.10.10, Average Earnings, the most appropriate formula for determining the worker's earnings is the Average Yearly Earnings Formula. In determining that this is the best formula to reflect the worker's actual earnings, the panel reviewed the worker's actual bi-weekly earnings for the 12 month period prior to his injury. The panel found that the worker's earnings fluctuated significantly on a bi-weekly basis due to the nature of the worker's employment, hence average yearly earnings are appropriate. Accordingly, the worker's wage loss entitlement is to be calculated on the sum of $58,291.00. The panel finds that this sum best reflects the worker's actual loss of earnings.
The worker's appeal of this issue is dismissed.
Panel Members
A. Scramstad, Presiding OfficerC. Devlin, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 12th day of January, 2016