The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel Review was held on April 28, 2000, at the request of the claimant.

Issue

Whether or not the claimant is entitled to wage loss benefits during the period June 3, 1997 to September 8, 1997; and

Whether or not the claimant's deemed post accident earning capacity should be $320.00 a week effective September 4, 1999; and

Whether or not the claimant has been overpaid.

Decision

That the claimant is not entitled to wage loss benefits during the period June 3, 1997 to September 8, 1997; and

That the claimant's deemed post accident earning capacity should be $320.00 a week effective September 4, 1999; and

That the claimant has been overpaid.

Background

While performing the duties of a labourer in the mining industry, the claimant sustained a compensable right knee injury when he slipped on a muddy rock and fell on June 12, 1986. Following treatment, the claimant returned to work performing light duties and was laid off in 1994 as the accident employer was unable to accommodate him with appropriate duties. The claimant then relocated to the Philippines and his file was closed within the WCB's vocational rehabilitation branch.

On June 3, 1997, the claimant wrote to the WCB indicating that he had returned to Canada and was requesting rehabilitation assistance along with retraining. On June 13, 1997, a Vocational Rehabilitation Consultant (VRC) wrote to the WCB of British Columbia requesting that they provide the claimant with vocational rehabilitation assistance and planning. On September 9, 1997, the claimant met with a BC VRC and he was placed in a two week Career Redirection program. The claimant was then reinstated on partial wage loss benefits during the period September 9, 1997 to September 30, 1997. Effective October 1, 1997, full wage loss benefits commenced.

In October 1998, the WCB sponsored the claimant into a Building Repair Technician Program. On October 30, 1998, the claimant dropped out of the course indicating that he was experiencing painful physical problems while attending the course.

In January 1999, the WCB agreed to sponsor the claimant in a Building Service Worker Course offered through the Vancouver Community College during the period March 15, to June 11, 1999 which the claimant successfully completed. Effective early July 1999 the claimant relocated to Kelowna, British Columbia and was provided with job search assistance through the WCB of BC.

On June 22, 1999, the claimant was reminded by the Manitoba WCB that full wage loss benefits would be paid up to September 3, 1999, at which time his benefit level would be reduced by his established earning capacity of $320.00 per week. On August 17, 1999, the claimant appealed this decision to the Review Office.

In a letter dated September 22, 1999, the claimant was provided with details as to the calculations of his benefit entitlement. The VRC also advised the claimant that it had been learned that he had been receiving a pension from the accident employer since July 1994 and that his file would be referred to a Payment Assessor to calculate the overpayment. On October 20, 1999, the claimant was informed that the overpayment amounted to $15,446.70 and that he was responsible for repaying the full amount. This decision was appealed by the claimant to Review Office.

On January 7, 2000, Review Office determined the following:

• That the claimant was not entitled to wage loss benefits between the period June 3, 1997 to September 8, 1997. Review Office indicated that the reason there was such a lengthy delay between the claimant indicating that he wanted vocational rehabilitation assistance and it being provided was that the claimant resided in B.C. Had the claimant chose to move to Manitoba, delays such as those would not have occurred and he would have begun and finished the vocational rehabilitation process.
• That the claimant's deemed post accident earning capacity should be $320.00 a week effective September 4, 1999. Review Office stated that WCB Board Policy 44.80.30.20 (Post Accident Earnings - Deemed Earning Capacity) provided guidance in the implementation of a deem and that the requirements of the policy had been met.
• Review Office confirmed that the claimant had been overpaid. Review Office stated there was no dispute that the claimant was in receipt of a disability pension from the employer and it was given in respect of his compensable knee injury. Considering such pensions to be post accident earnings and reducing wage loss benefits accordingly was a long-standing WCB practice, Review Office saw no basis for disturbing same.
• That the overpayment should be recovered unless it was determined that to do so would cause the claimant undue hardship. Review Office confirmed that the claimant advised the WCB that he was in receipt of a disability pension long before the WCB took note of the fact and determined that his wage loss benefits were being calculated incorrectly. WCB Policy 35.40.50, (Overpayments to Workers), did not provide for the waiving of the collection of overpayments when the overpayment was created by the WCB's actions or lack thereof. The policy did provide for the writing off of overpayments if was determined that recovery would cause the claimant undue hardship. Review Office indicated that the decision as to whether the claimant qualified under this provision was made by the WCB's collection branch and that this would be done and the claimant would be advised of the outcome.

The claimant appealed Review Office's decisions and a non-oral file review was held.

Reasons

With respect to the first issue, we note the claimant advised the WCB in 1994 that he was leaving the country and as such he was not interested in receiving vocational rehabilitation assistance at this time. In June 1997, the claimant informed the WCB that he had returned to Canada and had taken up residence in Vancouver, British Columbia and that he wished to re-establish vocational rehabilitation services. His letter of June 3rd to the WCB concluded by saying, "Will you contact me and inform me if the WCB of Manitoba will still give me rehabilitation assistance and retraining."

The WCB determined that a full assessment would have to be conducted to ensure the claimant's eligibility for rehabilitation assistance. Inasmuch as the claimant was now residing in British Columbia (BC), the WCB made arrangements for a BC vocational rehabilitation consultant to conduct a full vocational rehabilitation assessment. The claimant was informed of this procedure by way of letter dated June 13th, 1997. On August 6th, 1997 the claimant telephoned the WCB of Manitoba to advise that he had just received the June 13th letter. He felt that his moving to a new residence might have caused the delay in receiving his mail. Eventually, the claimant did meet with the WCB of BC on September 9th, 1997.

We find that the claimant is not entitled to wage loss benefits during the period of June 3rd to September 8th, 1997 for several reasons. Firstly, the provision of vocational rehabilitation benefits is discretionary on the part of the WCB under the provisions of the Act. As such, the WCB would have to make a determination as to the claimant's eligibility. Secondly, the claimant's failing to provide notice of change of address in a timely manner, contributed to the delay in the implementation of the assessment process, as well as the fact that the claimant did not reside in Manitoba. Finally, we see no reason why the claimant could not have informed the WCB of Manitoba of his intention to return to Canada earlier than he did.

On October 15th, 1998 the claimant entered into a formal written rehabilitation plan with the WCB. One of the terms and conditions contained in this plan, which was agreed to by the claimant, states as follows:

"Upon completion of this plan it is anticipated that you will be capable of earning $320.00 per week. In the event that employment is not secured after the 'job search' period entailed in this plan, your benefits will be reduced in accordance with WCB policy and Earning Capacity Assessment practices. Your income status/potential will be reviewed on an annual basis thereafter and further adjustments will be made."The plan was subsequently amended to incorporate an alternate training program. The claimant acknowledged that upon completion of the retraining program job search assistance would be provided for the period June 14, 1999 to September 3, 1999 inclusive and final. The WCB advised the claimant by letter on May3rd, 1999 that "Upon completion of this vocational rehabilitation plan, it is anticipated that you will be capable of earning $320.00 per week. In the event that employment is not secured after this time, your benefits will be reduced by $320.00 per week, your established earning capacity."

In accordance with the vocational rehabilitation plan agreed to by the claimant, we find that the claimant's deemed post accident earning capacity should be $320.00 a week effective September 4, 1999.

There is no question that the claimant received more money from the WCB than he was entitled and as consequence he has been overpaid. We note, however, that the overpayment occurred through no fault of the claimant's. Review Office in its decision of January 7th, 2000 commented: "The claimant is quite right in saying that he advised the WCB that he was in receipt of a disability pension long before the WCB took note of the fact and determined that his wage loss benefits were being calculated incorrectly." WCB Order 5/2000 effective April 1, 2000 revised policy 35.40.50 dealing with overpayment of benefits. The policy states in part: "All overpayments receivable will be pursued for recovery, unless: (ii.) they resulted from either an administrative error by the WCB, or the receipt of incorrect information from an employer that affected eligibility or the amount payable. The exception to this provision is that the overpayment will be pursued if the WCB considers that the error or incorrect information was so material or obvious that the worker should have recognized it and reported it to the WCB."

Given the fact that we have confirmed the overpayment, the WCB can now proceed to make a determination with respect to the collection of same.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of May, 2000