The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the method used to calculate the worker's average earnings was correct. A hearing was held on June 24, 2026 to consider the worker's appeal.

Issue

Was the method used to calculate average earnings correct?

Decision

The method used to calculate average earnings is correct.

Background

The worker has an accepted WCB claim for an injury that occurred at work on August 11, 2024. In a discussion with the WCB on August 20, 2024, the worker advised they started working for the employer initially as a full-time employee but in July 2017 resigned that position and returned to the employer as a casual employee. Earnings information was requested and received by the WCB, including gross earnings for the last calendar year and the 12 months prior to the incident.

On August 23, 2024, a WCB payment assessor established the worker’s short term average earnings based on the worker’s prior 12-month gross earnings and the worker was paid wage loss benefits. The employer advised the WCB on October 30, 2024, the wage information provided also included retroactive wage payments made in the 12 months prior to the workplace accident. A further review was performed by a WCB payment assessor and on the same date, the worker was advised a new average earnings weekly benefit rate had been calculated as the retroactive payments should not have been included and that an overpayment had occurred as a result. The WCB also advised the overpayment amount would be written off. The worker returned to work on modified duties on April 16, 2025. It was noted that the worker's earnings with the employer were higher than their weekly benefit rate and as such, they were not paid partial wage loss benefits by the WCB.

The worker contacted the WCB on July 8, 2025 to discuss concerns with their claim. At the time, the worker questioned why they were not considered a "casual emergency worker" as defined under the Act. On the same date, the WCB advised the worker that they would not be considered by the definition as their position was not an "on call" position that responded as needed. It was noted that the worker picked up shifts based on their own availability and their average earnings were calculated based on the appropriate section of the Act. It was further noted the worker voluntarily changed to a casual position with the employer for personal reasons. The worker requested further clarification and the WCB provided a further response that the worker did not meet the criteria of a casual emergency worker on July 8, 2025. The worker submitted a letter from their employer on July 16, 2025, and requested the WCB reconsider the decision they were not a "casual emergency worker". The WCB provided the worker with a formal decision letter on July 17, 2025, advising they did not meet the definition of a casual emergency worker under the Act and provided a letter setting out how their average earnings were calculated.

The worker requested reconsideration of the WCB's decision to the Review Office on August 1, 2025. In their submission, the worker presented the argument that if they were considered a "casual emergency worker" as defined under the Act, their benefits would be calculated differently as opposed to the current calculation of their past 12 months of earnings, which the worker believed did not accurately reflect their normal income or potential income. On October 16, 2025, the Review Office determined the method used to establish the worker's average earnings was correct. The Review Office found that the WCB's Compensation Services decision to use the Average Earnings Formula to calculate the worker's average earnings was correct due to the worker's irregular earnings as they were a casual worker. In addition, the Review Office found the worker did not meet the criteria of a casual emergency worker under the Act as they were a permanent casual employee, working for an employer of record and received renumeration for the work they do. It was also found by the Review Office that the evidence of the worker was that they were a full-time employee of the employer until they chose in 2017 to resign from that position and return to the employer as a causal worker.

The worker's representative filed an appeal with the Appeal Commission on February 3, 2026, and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has sustained a personal injury arising out of and in the course of employment.

The Act defines “casual emergency worker” under Section 1(4) as follows:

1(4) In this section, "casual emergency worker" means

(a) a member of a municipal fire brigade who is available on a casual basis, with or without remuneration, to respond as needed to fire or emergency calls and whose membership in the municipal fire brigade has been approved either by the chief of the department, or by the municipal corporation or a duly authorized officer thereof; 

(b) a person ordered under The Wildfires Act to assist in extinguishing a forest, brush, or grass fire; 

(c) a person assisting in fighting a fire or attending an emergency response under the direction of a fire guardian, conservation officer, the chief or head of a municipal fire department or fire brigade, or the Fire Commissioner for Manitoba; 

(d) a member of a municipal or community ambulance service who is available on a casual basis, with or without remuneration, to respond as needed to emergency calls for ambulance services and whose membership in the ambulance service has been approved either by the chief officer of the ambulance service, or by the municipal corporation or a duly authorized officer thereof; or 

(e) a person who is not otherwise covered by this Act, who, under The Emergency Measures Act, 

(i) volunteers or is required to provide aid in an emergency, if he or she is under the direction of a person with authority to implement an emergency plan under that Act, 

(ii) voluntarily provides aid while acting under authority of an agreement entered into under section 7 of that Act, if he or she is under the direction of the co-ordinator of the Manitoba Emergency Management Organization, or 

(iii) is engaged in an emergency management program.

Under Section 4(2), a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under Section 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Section 45 of the Act outlines the method to calculate a worker’s average pre-accident earnings and provides that the WCB shall calculate the average earnings based on the income from employment and employment insurance benefits, and over such a period of time, as the board considers fair and just.

The WCB established Policy 44.80.10.10, Average Earnings (the “Average Earnings Policy”), which outlines how the WCB will determine a worker’s average earnings at the time of a compensable injury. The Average Earnings Policy outlines three formulae to determine a worker’s average earnings and sets out that the formula used is the one that “best represents the worker’s employment and earnings pattern before the accident.” There are 3 separate earnings formulae that can be used depending on the circumstances.

• The regular earnings formula calculates the worker’s average earnings based on the amount of earnings they would normally receive as remuneration in all occupation(s) in which they were employed on the date of accident, if their ability to earn income from each of these occupations was affected by the compensable injury. This formula normally excludes overtime, special reimbursements, allowances, and bonuses.

• The average yearly earnings formula is used when a worker has an irregular earnings pattern due to the nature of their work, for example, as a seasonal worker, contract worker, pieceworker, or with fluctuating overtime. Average yearly earnings include any verifiable remuneration that the worker received from employment and employment insurance benefits, and includes overtime, special reimbursements, allowances, and/or bonuses. Under this formula, the WCB will generally rely on data from any consecutive 12-month period occurring during the one or two years before the date of the accident but may choose one or more consecutive 12-month periods from any of the previous five calendar years if doing so would produce a more accurate reflection of the worker’s employment and earnings pattern before the accident.

• The probable yearly earning capacity formula forecasts what a worker might be expected to earn for a consecutive 12-month period after the day of accident. Although based on the worker’s earnings before the accident, this formula uses the worker’s regular earnings or average yearly earnings and adjusts them to reflect the worker’s probable employment and earnings pattern going forward, or alternatively, the employment and earnings pattern of a representative sample of similarly employed workers. It also may include presumed employment insurance benefits. This formula is used when the formulas for regular earnings and average yearly earnings do not accurately reflect what the worker’s average earnings likely would have been, but for the accident, and generally, the WCB will only use probable future earning capacity to calculate average earnings when there is a sufficient degree of certainty about what the worker’s average earnings likely would have been.

Worker’s Position

The worker was present at the hearing, supported by their spouse and represented by an advisor. The worker’s representative provided a written submission in advance of the hearing and also made a presentation to the panel. The worker answered questions posed by their representative and members of the appeal panel.

The worker’s position is that they should be considered a casual emergency worker, as set out in Section 1(4) of the Act, specifically subsection (d), a member of a municipal or community ambulance service. The worker’s evidence is that they were a casual primary care paramedic at the time of the incident.

The worker relies on the definition of casual employee from their collective agreement to show the similarities between the language in the collective agreement and the definition under the Act. The worker also provided samples of text messages from their employer regarding shifts that needed to be filled on an urgent basis. The worker notes that they responded to requests from the employer and they did not provide their availability up front. The worker’s position is that their employment fits the definition in the Act, which states “To respond as needed to emergency calls for ambulance services”, and that the text messages with their employer confirm this.

The worker’s position is that, as a paramedic, they are responding to emergency calls for ambulance services.

The worker also submits that the text messages demonstrate that there is a requirement for an immediate response (“as soon as possible or within a set number of hours). The worker states that this speaks to the urgency of the request.

The worker’s position is that their employment fits within the definition under Subsection 1(4)(d) and they should be compensated accordingly.

Employer’s Position

The employer was represented by an advisor at the hearing. The employer’s position is that the correct method was used to calculate the worker’s average earnings. The employer’s representative submits that the worker was a casual paramedic, and that the average earnings rate was fairly calculated.

The representative states that the worker should not be considered a casual emergency worker, as defined under the Act. The employer’s representative submits that the worker was not required to take shifts but had a choice in the matter. The position of the employer is that including anyone who works on a casual basis in an emergency setting, such as an emergency room in a hospital or a police officer, under the said definition was not the intention of the Act.

The employer states that the calculations attempted to fairly compensate the worker based on their wage history and submits that the Review Office was correct in their method of calculating the worker’s average earnings.

Analysis

The issue before the panel is whether the method used to calculate average earnings was correct. For the worker’s appeal to succeed, the panel would have to determine that the WCB failed to apply the correct formula in calculating the worker’s average earnings.

The worker argues that they should be considered a “casual emergency worker” under section 1(4)(d) of the Act and that the WCB incorrectly applied the Average Yearly Earnings Formula to determine the worker’s average earnings. The panel is not persuaded that the evidence establishes this.

Section 45 of the Act provides the WCB with discretion to determine a worker’s average earnings based on the worker’s income from employment and employment insurance benefits and over such a period as the WCB considers fair and just. The Average Earnings Policy provides further guidance by establishing three formulas and directing that the formula selected be the one that best represents the worker’s employment and earnings pattern before the accident.

The evidence is that the worker was employed as a casual primary care paramedic at the time of the accident. The worker was not in an on-call position. Rather, the panel notes that the worker acknowledged that they were not required to accept shifts presented to them by the employer and, if they were unavailable, they would not respond to the request to work. The worker could select shifts based on their own availability.

The worker argued that their circumstances met the definition of a “casual emergency worker” under section 1(4)(d) of the Act. That provision applies to a member of a municipal or community ambulance service who is “available on a casual basis” to “respond as needed to emergency calls for ambulance services” and whose membership in the ambulance service has been appropriately approved. The panel accepts that the worker, in their capacity as a paramedic, responded to emergency calls for ambulance services while working. However, the panel does not find that this fact, on its own, brings the worker within the statutory definition.

The wording of section 1(4)(d) must be considered as a whole. The provision is directed at persons who are available on a casual basis to respond as needed to emergency calls for ambulance services. The evidence before the panel does not establish that the worker was maintaining a casual availability to be called upon by the ambulance service in response to an emergency. Instead, the worker was a permanent casual employee who chose whether or not to accept available shifts. The distinction is significant. The worker was not required to remain available or to respond whenever requested. If the worker was unavailable, they simply did not accept the shift.

The panel also considered the text messages provided by the worker concerning shifts that required coverage on short notice. The panel accepts that these messages demonstrate that the employer sometimes had an urgent need to fill shifts and that the worker could respond to those requests within a specified period. However, the urgency associated with filling a vacant shift does not establish that the worker was a “casual emergency worker” within the meaning of section 1(4)(d). The panel does not consider a request to fill a regular employment shift on short notice to be equivalent to being available to respond to an emergency call for ambulance services as contemplated by the statutory definition.

The panel further finds that the worker’s interpretation would give the definition an overly broad application. If the fact that a casual employee performs work in an emergency environment were sufficient to meet section 1(4)(d), the distinction between an ordinary casual employee and a casual emergency worker would be significantly diminished. The panel does not find that the legislature intended every casual paramedic who responds to emergency calls as part of their regular duties to automatically fall within the definition. Rather, the wording contemplates a particular type of casual availability and response to emergency calls.

The panel also notes that the worker’s circumstances are distinguishable from those of a person who is called upon to provide emergency assistance because of a particular emergency, disaster or event. The worker was performing their regular employment duties and responding to regular ambulance calls. There was no evidence that the worker was being mobilized because of a major disaster, emergency event, or other circumstance requiring all available paramedics to attend. In the panel’s view, this distinction supports the conclusion that the worker was not acting as a “casual emergency worker” within the meaning of the Act.

Having found that the worker does not meet the statutory definition, the panel must then consider whether the WCB appropriately calculated the worker’s average earnings. The evidence establishes that the worker had an irregular earnings pattern because they were employed on a casual basis. The Average Yearly Earnings Formula is specifically intended to address circumstances in which a worker’s earnings fluctuate, and the regular earnings formula would not accurately represent the worker’s pre-accident earnings pattern. The WCB used the worker’s prior 12 months of earnings to establish the average earnings rate. This approach is consistent with the Act and the Average Earnings Policy and appropriately reflects the worker’s actual earnings pattern before the accident.

The worker voluntarily changed from full-time employment to casual employment in 2017 and remained a casual employee at the time of the accident. The worker’s earnings therefore fluctuated depending upon the shifts they chose to accept. In these circumstances, using the Average Yearly Earnings Formula based on the worker’s actual earnings history was appropriate.

The panel also notes that the WCB subsequently identified that retroactive wage payments had inadvertently been included in the initial calculation. The WCB recalculated the worker’s average earnings when this was identified and advised the worker that an overpayment had resulted. The overpayment was written off. There is no evidence before the panel that the revised calculation, excluding the retroactive payments, was inconsistent with the Act or the applicable policy.

On a balance of probabilities, the panel finds that the worker was not a “casual emergency worker” as defined by section 1(4)(d) of the Act. The worker was a casual employee who selected shifts according to their availability and was not required to remain available to respond to emergency calls. The fact that the worker’s regular duties as a paramedic involved responding to emergency calls does not, without more, satisfy the statutory definition.

The panel therefore finds that the WCB appropriately applied the Average Yearly Earnings Formula to the worker’s irregular earnings pattern. The method used to calculate the worker’s average earnings was consistent with section 45 of the Act and the Average Earnings Policy and was fair and just in the circumstances.

Accordingly, the worker’s appeal is dismissed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of August, 2026