Decision #78/00 - Type: Workers Compensation
Preamble
An Appeal Panel review was held on July 11, 2000, at the request of the claimant.
Issue
Whether or not the claimant has been overpaid wage loss benefits in the amount of $142.60; and
Whether or not the claimant is required to repay the overpayment.
Decision
That the claimant has been overpaid wage loss benefits in the amount of $142.60; and,
That the claimant is not required to repay the overpayment.
Background
On January 17, 2000, the claimant submitted an application for compensation benefits with respect to a lower back injury which occurred during the course of her employment as a property manager. The claim was accepted by the Workers Compensation Board (WCB) and the claimant was issued full wage loss benefits between January 7, 2000 and February 10, 2000.
Subsequent file records showed that the claimant was paid full wages by the accident employer for the same time period that the WCB paid benefits to the claimant.
This resulted in an overpayment in the amount of $142.60. Consequently, the claimant was notified on March 3, 2000, that she was responsible for repaying the full amount of the overpayment back to the WCB. On March 29, 2000, the claimant appealed this decision stating that both she and her employer were advised by WCB staff that it was okay to cash the WCB's cheque, and therefore she should not have to repay the overpayment.
On April 20, 2000, Review Office confirmed that the claimant had been overpaid wage loss benefits in the amount of $142.60 and that she was required to repay the overpayment. Review Office based its decision on the WCB's overpayment policy which stated that overpayments would be pursued for recovery where the following circumstances apply: "The overpayment represents a duplication of benefits paid from another source for the same injury." Review Office concluded that as the claimant was paid her full salary during her period of disability this amounted to her receiving cumulative benefits greater than the amount of the financial loss incurred as a result of the compensable injury. Therefore, the claimant had been overpaid wage loss benefits and should be required to repay the amount of the overpayment. On May 12, 2000, the claimant appealed Review Office's decision and a non-oral file review was arranged.
Reasons
We find that the claimant has been overpaid wage loss benefits in the amount of $142.60.
The WCB has enacted a specific policy with respect to overpayment of benefits and ultimate recovery of same. Policy 35.40.50 states as follows: "The purpose of this policy is to describe the principles that the Board of Directors has established to guide the WCB in its recovery of overpayments to claimants." Section C (3) outlines the overpayment recovery criteria.
The claimant relies on criterion C (3) (ii) as justification for not having to repay her overpayment. This particular provision declares that all overpayments will be pursued for recovery unless: "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."
Review Office in arriving at its decision relied upon provision C (4) (ii) that provides the overpayment will be pursued for recovery where "The overpayment represents a duplication of benefits paid from another source for the same injury. Duplication of benefits from another source for the same injury may include payments from sources such as: 1. Employment Insurance, 2. CPP Disability Benefits, 3. Employer, 4. Personal Disability Insurance Plans." (Emphasis ours)
Appendix A attached to policy 35.40.50 contains policy terminology. It defines 'duplication of benefits from another source for the same injury'. This may include payments from such sources as: "employment insurance, CPP disability benefits, employer or personal disability insurance plans." (Emphasis ours)
Our view of the meaning of section C (4) (ii) differs from Review Office in that we believe there was no double benefit being paid to the claimant. The overpayment arose because the claimant was in fact receiving regular wages from her employer and not benefits from an employer disability insurance plan. (Emphasis ours)
The evidence confirms that on more than one occasion both the claimant and employer questioned the WCB as to whether the claimant was entitled to cash its cheque. In each instance, the WCB advised the claimant that she could cash the cheque.
In accordance with section C (3) (ii) of WCB policy 35.40.50, we find that the advice given by the WCB to the claimant amounted to an administrative error on its part. Therefore, we further find pursuant to the above policy that the claimant should not be required to repay the overpayment.
Panel Members
R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of July, 2000