The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding the calculation of his average earnings. A file review was held on October 27, 2016 to consider the worker's appeal.

Issue

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

Decision

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

Background

On February 1, 2013, the worker was involved in a work-related motor vehicle accident. His claim for compensation was accepted by the WCB and benefits were paid accordingly.

On December 5, 2013, the worker was advised by the WCB that his average earnings had been calculated at $841.37 per week, resulting in a weekly benefit rate of $549.47. The worker disagreed with the rate and an appeal was filed with Review Office.

On September 19, 2014, Review Office determined that the worker's average earnings had been correctly calculated. Review Office agreed with the WCB's decision to use the worker's earnings from his previous employer and his earnings from the accident employer as reported on file to determine his average earnings. The worker was also instructed that if he had any new information that he should submit it to the WCB for consideration.

In October 2015, the worker provided the WCB with new information for consideration. On October 30, 2015, the WCB calculated the worker's average earnings at $928.23 per week resulting in a weekly benefit rate of $593.58. In November 2015, the worker appealed that decision to Review Office.

On January 22, 2016, Review Office noted that the worker's gross average earnings were calculated as follows by the WCB:

Gross earnings November 28, 2012 to December 31, 2012 (4.86 weeks) - $4622.77

Gross earnings January 16, 2013 to February 1, 2013 (2.43 weeks) - $2146.22

 TOTAL $6768.99

$6768.99 ÷ 7.29 weeks = $928.53 per week (indexed to $947.91 per week)

The worker felt that his gross earnings from the accident employer should be divided by 2 weeks, not 2.43 weeks, as he had two days off during this time period.

Review Office noted that the worker was employed as a long distance truck driver. He did not have a set schedule with regular days off. He was considered a seven day worker, meaning he could work any day out of seven. For every week he was off work, he was receiving compensation for seven days.

Review Office found that the calculation ($2146.22 ÷ 2.43 weeks) was correct and the average earnings had been correctly calculated. Review Office noted that according to policy "…to determine a worker's true loss of earnings, the WCB will generally use documentable employment data from any consecutive 12-month period during the one or two years before the compensable accident…" Review Office determined that using the worker's earnings from his previous employment in the average earnings calculation was correct and consistent with the policy. On September 4, 2016, the worker appealed Review Office's decision to the Appeal Commission and a file review 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 WCB's Board of Directors.

The worker is appealing the calculation of his average earnings used in setting his wage loss benefits.

Subsection 45(1) of the Act deals with the calculation of average earnings, and states as follows:

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") 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."

"Average yearly earnings" is defined in the Average Earnings Policy as follows:

Average yearly earnings include any remuneration that the worker received as a result of employment or employment-insurance benefits. To determine a worker's true loss of earnings, the WCB will generally use documentable employment data from any consecutive 12-month period during the one or two years before the compensable accident. If the WCB determines that this calculation does not produce an accurate reflection of a worker's loss of earnings, it will generally use documentable employment data from a 12-month period during, or an average of, a longer period of up to five years.

Worker's Position

In his appeal form, the worker submitted that his actual wage loss with the accident employer had not been correctly calculated. The worker asked that the panel review the proof he had provided of his earnings and his submission to Review Office, to determine his correct wage loss.

In his submission to Review Office, the worker had specifically stated that the WCB should have calculated his weekly average earnings by dividing his gross earnings from the accident employer by 2 weeks, instead of 2.43 weeks (17 days). The worker noted that WCB had included all days between January 16 and February 1, 2013, or a total of 17 days, as working days. He said he had two complete 24-hour holidays during that period of time. The worker calculated that his total number of working days with the accident employer from January 16 to 31, excluding holidays, was 14, and submitted that his biweekly compensation should have been calculated based on that 14 day working period. His gross earnings should have been divided by 2 weeks as opposed to 2.43 weeks (17 days) when calculating his average weekly earnings.

The worker also submitted that the WCB should not have used income from both his accident employer and his previous employer in calculating his average earnings and wage loss benefits. Rather, it should only have used his biweekly income from the accident employer. He indicated that the reason he left his previous employment was that he would be making more money with the accident employer, based on a higher rate of pay per kilometer, and that he would not have left his previous employment if that were not the case.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker's average earnings have been correctly calculated. For the worker's appeal to be successful, the panel must find that the calculation of the worker's average earnings is incorrect. The panel was unable to make that finding.

File information shows that the accident employer provided only limited information to the WCB with respect to the worker's gross earnings. The worker himself was unable to provide paystubs, as he had not been paid. This has led to a more complicated process to establish the worker's average earnings.

On September 17, 2015, the worker provided a summary of his mileage and earnings, detailing his work period and travel for the accident employer, as supported by entries on his credit card statement. Between September 17 and October 2, 2015, the worker forwarded a number of revised summaries incorporating corrections to his mileage and earnings in respect of particular days and an explanation as to the reason for those corrections.

Based on our review of the file and the summaries which the worker prepared, the panel is satisfied, on a balance of probabilities, that the revised summary which was forwarded on October 2, 2015 and applied in calculating the worker's average weekly earnings, accurately reflects the worker's mileage and earnings from January 16, 2013 to the date of his accident.

In reaching this conclusion, the panel notes that information on file shows that the case manager met with the worker and reviewed the worker's summary of mileage and earnings, with the assistance of the payroll assessor. The panel places significant weight on an October 16, 2015 memorandum to file from the case manager which states, in part:

…it appears that the piece of information that was missing was [worker's credit card] statement for the period of his work with the accident employer. The information is presented two years post injury, but when looking at the …statement, it establishes his travel from Winnipeg, mileage and history based on the details in it. When I met with him to review the new information, he was clear in his explanation, consistent in his story and in my position, he had presented an accurate reflection of his employment. I did not feel there was any embellishment to what he was presenting…

Based on the minimal wage information that was originally received, I believe the new information submitted reflects the actual earnings. I feel that the information is a more fair representation of the actual earnings with the accident employer.

The panel also finds that the worker's weekly average earnings from the accident employer were properly calculated based on the entire period of his employment between January 16 and February 1, 2013, being 17 days or 2.43 weeks. The panel notes that the worker was a fulltime employee, but did not have a set schedule. The panel was unable to accept the worker's position that days in the middle of that period of time when he was not driving or the day of the accident should be excluded from that calculation. The panel notes that the worker's position is premised on his working every day or seven days a week, every week. The worker did not, however, work every day, nor would he have worked seven days every week over a 12 month period. The panel is satisfied that including days when the worker was not driving was consistent with the evidence and with a normal work and payment schedule.

The panel is further satisfied that including the worker's earnings from his previous employment was appropriate and consistent with policy. The worker had been employed with the accident employer for less than three weeks when the accident occurred. He had been employed by the previous employer for more than four weeks, doing the same type of work.

The panel acknowledges the worker's position that the reason he left his previous employment was because he expected to make more money with the accident employer. In spite of that, the evidence shows that the worker's average weekly earnings from his accident employer were less than what he earned with his previous employer. The panel notes that calculating the worker's earnings based on his documentable earnings from both the accident employer and the previous employer results in a higher average than if the calculation was based on his earnings from the accident employer alone. Based on the documentable employment data before us and on a balance of probabilities, the panel is satisfied the calculation of the worker's earnings from both the previous and the accident employer accurately reflects and best represents the worker's actual loss of earnings.

In light of the foregoing, the panel also carefully reviewed the calculations themselves and found that they were correct.

The panel therefore finds, on a balance of probabilities, that the worker's average earnings have been calculated correctly.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of December, 2016