Decision #125/17 - Type: Workers Compensation

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding the calculation of his average earnings and that he was not entitled to an Independent Living Allowance or Personal Care Assistance prior to his surgery date of September 30, 2016. A hearing was held on July 27, 2017 to consider the worker's appeals.

Issue

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

Whether or not the worker is entitled to further independent living assistance benefits prior to September 30, 2016; and

Whether or not the worker is entitled to personal care assistance benefits prior to September 30, 2016.

Decision

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

That the worker is not entitled to further independent living assistance benefits prior to September 30, 2016; and

That the worker is not entitled to personal care assistance benefits prior to September 30, 2016.

Background

On January 9, 2008, the worker caught his left foot on a doorway and jumped down four stairs to avoid falling. An MRI of the left knee performed on February 1, 2008 revealed the following:

1. Complete tear proximal anterior cruciate ligament. 

2. High grade tear distal medial collateral ligament. 

3. Complex tear posterior horn lateral meniscus. 

4. Bone contusion and lateral tibial plateau.

The claim for compensation was accepted and benefits and services were paid to the worker. On March 29, 2008, the worker underwent a left knee scope, partial medial and lateral meniscectomy, notch plasty and medial femoral chondroplasty.

In a note to file dated November 6, 2008, it was stated that the worker had significant atrophy of his quadriceps and hamstring muscles and that reconditioning as opposed to further surgery with ACL reconstruction was reasonable.

On December 2, 2008, the worker advised the WCB that he had returned to work in May 2008.

On June 21, 2016, the worker filed a WCB claim for an injury to his left knee that occurred on June 6, 2016 while employed as a carpenter. The worker reported that he was climbing a grid of steel beams when the mud on his boots caused him to slip and fall. He noted that, about 2 feet down, his left knee crashed onto one of the steel beans and he felt an instant sharp pain in his knee. He then fell 4 more feet to the ground, landing with his legs straight. This caused a further jolt to his knee. The WCB accepted the claim with a diagnosis of a left knee effusion.

On September 30, 2016, the worker underwent a left knee arthroscopy with ACL reconstruction and partial medial meniscectomy and partial lateral meniscectomy. On November 1, 2016, a WCB medical advisor opined that the surgical procedures were likely related to the January 9, 2008 workplace injury.

On October 4, 2016 a WCB rehabilitation specialist attended the worker's home to see what the worker required with respect to care following his recent left knee surgery. The rehabilitation specialist's findings are contained in a memo to file dated October 25, 2016.

On October 17, 2016, the worker was advised that as of September 30, 2016, his average earnings were established based on projected earnings as the worker's contract was scheduled to end on December 1, 2016.

On October 25, 2016, a payment assessor noted to the file that the worker disagreed with his average earnings rate of $1298.45 effective September 30, 2016. The worker was of the view that he had earned much more than this at the time of his surgery. Following review of additional information provided by the worker's union representative, the worker was advised on October 26, 2016 by Compensation Services that his average earnings had been correctly established at $1298.45 per week effective the recurrence date of September 30, 2016.

In a letter dated November 15, 2016, the worker was advised by Compensation Services that following the home assessment that took place on October 4, 2016, there was no entitlement to an Independent Living Allowance ("ILA") or a Personal Care Allowance ("PCA") prior to his surgery date of September 30, 2016 other than the assistance already reimbursed for lawn care. The case manager noted that there was no medical to support the need for assistance at home. The worker was considered capable of continuing to work in some capacity and was able to attend active treatment such as physiotherapy prior to his surgery. This supported that he was not totally disabled and should have been able to perform day to day activities/tasks at home.

On January 24, 2017, Review Office considered appeals brought forward by the worker regarding his average earnings calculation and his entitlement to ILA and PCA benefits prior to his surgery date of September 30, 2016.

Review Office determined that the worker's average earnings had been correctly calculated by the WCB. Review Office stated that it agreed with the WCB payment supervisor's comments that the probable yearly earning capacity must be based on the worker's earnings before the accident or at the time of a recurrence due to surgery, but may be based on income from employment and employment insurance benefits. In keeping with WCB policy, Review Office noted that the worker's benefits were calculated using income from his employment (to December 1, 2016) and using projected employment insurance benefits. There were no provisions in the Act or Board policy to calculate his average earnings using possible earnings from employment that was not previously (prior to the recurrence) guaranteed.

Review Office also determined that there was no entitlement to ILA or PCA benefits prior to the surgery date of September 30, 2016. Review Office stated that the medical evidence on file supported that the worker was capable of performing sedentary duties prior to his surgery date. Although the worker required some sedentary tasks, he was not totally disabled from performing other tasks which would involve walking short distances or doing personal care.

On February 24, 2017, the worker appealed Review Office's decisions to the Appeal Commission 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 WCB Board of Directors.

Issue 1: Whether the average earnings have been correctly calculated

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."

Issue 2: Whether there is further entitlement to independent living assistance benefits prior to September 30, 2016

WCB Policy 44.120.30, Support for Daily Living (the "Policy") provides guidance regarding the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. It provides that assistance may be provided for services that allow the worker to live safely and independently in his home, including lawn care, snow shoveling, and other tasks. 

Issue 3: Whether there is entitlement to personal care assistance prior to September 30, 2016

WCB Policy 44.120.30, Support for Daily Living (the "Policy") provides that personal care attendants may be provided to assist with hygiene, grooming, feeding, dressing, and toilet functions.

Worker's Position

The worker was self-represented at the hearing. He explained his position and answered questions from the panel.

The worker explained that in his 2008 accident he was working on the construction of a resort building and in 2016 he was working on a highway overpass project. In answer to questions, the worker explained that he has worked with pain since the first accident but was able to function well.

The worker disagreed with the WCB's decision on his average earnings. He said that it was not appropriate for the WCB to base his wages on four months of lay-off. He said that he is a union member and could "just go to the union and get another job." He advised that he provided a letter from his union representative indicating that if he was not injured, there would be work for him. He advised that the union representative arranged for an employer to write a letter saying he would hire the worker at a foreman’s rate when the doctor indicates he is healthy. The WCB also asked for a copy of a pay stub from a worker at this employer's worksite indicating the hours worked.

In answer to a question about a possible lay-off, the worker advised:

No, there was a three-year project and it’s still ongoing, so there was never any mention of a layoff, and if there was, there was more than enough work at the union… 

He also advised with respect to his former position that:

In those years I’ve never been laid off, I’m not a seasonal worker, I’m a year-round worker, always have been. I’m a foreman and a supervisor, I would never get laid off and I haven’t been laid off, other than by an injury.

The worker advised that he worked at modified duties prior to having surgery and that he had to use a brace and a crutch during this period. He also provided a list of medication that he was taking.

Regarding the duties that his partner performed when he was injured he advised that:

Well, grocery shopping, stuff I used to do, like, I used to do pretty much everything, right? So it’s anything that I used to do, she would help out, you know, do the extras, keep me on the couch, get me my stuff, get me my ice packs…

The worker said that the report prepared by a WCB occupational therapist was different than the information the occupational therapist provided at the visit. He said:

No, he was good, he was fair that way, like, when they started paying me after the accident for the personal care stuff, I was fine with everything they gave. I wasn’t arguing about anything.

He confirmed that his issue is with respect to the period before his surgery.

He advised that he did not cut his lawn after the injury. He also disagreed with the information on file that he had a hobby farm with Christmas trees that he sold in the Christmas season.

Analysis

Issue 1: Whether the average earnings have been correctly calculated

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 it was appropriate to use the formula for probable yearly earning capacity in the calculation of the worker's average earnings and to use the four months of unemployment in the calculation. The panel finds that it was appropriate for the WCB to use the probable yearly earning capacity and to include a four month period of unemployment and unemployment benefits in the calculations of the worker's probable yearly earning capacity.

The panel notes the worker's position that he had an established history of working full time without layoffs for his past employer. However, the evidence shows that the worker received Employment Insurance benefits in both 2011 and 2013. This contradicts his evidence that he was not laid off by the past employer.

The worker told the panel that he left his past employer due to a lack of work and downsizing by that employer. This suggests that the worker would be subject to lay-off with his past employer. 

The panel also notes that the worker was not a full-time permanent employee of the accident employer. Rather he was a full-time project employee. The evidence indicates that his employment was limited to the length of the project. In fact, the accident employer confirmed the worker would be laid off with an anticipated lay-off date of December 1, 2016.

The panel notes the worker's concern that had he not been hurt he could have been working through his union with other employers. The panel finds this evidence to be speculative and that there was no guarantee of employment before the accident, accordingly, therefore does not rely on it in making its decision.

Given the above information, the panel finds, on a balance of probabilities, that the probable yearly earning capacity formula best represents the worker's loss of earnings and finds further that the worker's average earnings have been properly calculated.

The worker's appeal of this issue is dismissed.

Issue 2: Whether there is further entitlement to independent living assistance benefits prior to September 30, 2016

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker was entitled to an ILA prior to September 30, 2016 as a result of his compensable injury. The panel is unable to make that finding.

As noted previously, assistance can be provided for services that allow the worker to live safely and independently in his home, including lawn care, snow shoveling, and other tasks. The panel considered the extent to which the worker required such services during the period prior to surgery. The worker's evidence at the hearing was that during this period he was able to work for the accident employer at modified duties between 30 and 40 hours per week, drive approximately 40 minutes from his house to work and back, climb 4 steps to enter the workplace, and walk with a brace. In addition, the worker advised that the laundry room was on the main floor of his house, three steps down from the living area. The worker was not required to descend or ascend multiple steps to do laundry or to leave or enter his residence.

The panel notes that the worker received some assistance with yard care for the period prior to September 30, 2016. We find that the evidence does not establish that the worker required additional assistance before the surgery. The panel finds that the worker had reasonable function, could perform sedentary tasks, and did not require additional assistance to live safely and independently in his home. The worker's request for additional independent living assistance prior to September 30, 2016 is declined.

The worker's appeal of this issue is dismissed.

Issue 3: Whether there is entitlement to personal care assistance prior to September 30, 2016

For the worker's appeal of this issue to be approved, the panel must find that the worker required assistance with the tasks noted in the policy, such as assistance with hygiene, grooming, feeding, dressing, and toilet functions. The panel was not able to make this finding.

The evidence provided by the worker, noted under Issue 2 above, establishes that the worker was independent and did not require assistance with hygiene, grooming, feeding, dressing, and toilet functions.

The panel finds, on a balance of probability, the worker was not entitled to personal care assistance prior to September 30, 2016.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Campbell, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of September, 2017

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