Decision #111/00 - Type: Workers Compensation
An Appeal Panel review was held on October 25, 2000, at the request of a union representative, acting on behalf of the claimant.
Whether or not the claimant's average earnings have been calculated correctly; and
Whether or not the claimant has been overpaid.
That the claimant's average earnings have been calculated correctly; and
That the claimant has been overpaid.
During the course of his employment on September 23, 1996, the claimant sustained a compensable left knee injury while moving a table with two other people. As a result of the accident, the claimant received wage loss benefits between September 1996 to April 1997, October 1997 to February 1998 and from April 1999 to October 1999.
In January 2000, Review Office determined that the claimant was entitled to wage loss benefits for the period October 1999 to January 2000. The Workers Compensation Board (WCB) issued the claimant a cheque in the amount of $6694.66 to cover this period of time.
On February 7, 2000, the claimant was advised in writing that he was overpaid wage loss benefits since April 1999 and that he was required to repay $3,393.82 of the cheque he was just issued. As the claimant refused to repay the amount, the claimant was notified that further benefits would be suspended until the complete overpayment had been repaid. On March 13, 2000, the claimant requested Review Office to reconsider this decision.
In a decision dated June 2, 2000, Review Office stated that the manner in which the claimant's wage loss entitlement was calculated as of April 1999 was not consistent with subsection 45(1) of the Workers Compensation Act (the Act) and that the manner in which the claimant's wage loss benefits were recalculated in February 2000 was correct. Review Office therefore concluded that the claimant was overpaid.
Review Office indicated that a portion of the overpayment had been collected and that the balance should not be collected. This decision was in keeping with Board Policy 35.40.50, Overpayments of Benefits. On July 18, 2000, the claimant appealed Review Office's decision and a non-oral file review was arranged.
The facts of this appeal are fairly straightforward. In January 2000, the WCB's Review Office determined that wage loss benefits for the period of October 1999 to January 2000 were due and payable to the claimant. Accordingly, a cheque for close to $7000.00 was issued to the claimant. The following day a representative of the WCB phoned the claimant to advise that since April 1999 he had been overpaid wage loss benefits. The most significant reason for the overpayment was due to the fact that in April 1999 the claimant's hourly rate of pay had been substantially reduced as a result of major revisions to his collective agreement. The claimant was requested to return the sum of approximately $3000.00, thus giving rise to the issues under appeal.
Section 45(1) of The Workers Compensation Act (the Act) provides as follows: "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."
In conjunction with the above section, the WCB formulated policy 188.8.131.52.01, which deals with average earnings. According to this policy: "An average earnings review occurs whenever the worker's average earnings previously established by the WCB are recalculated. The WCB may review and adjust the worker's average earnings amount on any claim where receipt of further documentation is received which indicates that a recalculation would result in a more accurate presentation of the 'actual loss of earnings'." In addition, the policy also states that "Any WCB decisions about subsequent changes to the worker's average earnings as a result of wage adjustments, inflation, etc., are not affected by this policy."
We find that the claimant's average earnings have been correctly calculated in accordance with the Act and WCB policy. As well, we also find that the claimant has been overpaid. This overpayment came about as a consequence of the reduction of the claimant's hourly wage rate pursuant to the collective agreement to which he was a party. We are confident that had there been an increase in the hourly wage rate, then the WCB would have made the appropriate adjustment in favour of the claimant. We are in agreement with Review Office that the balance of the overpayment should not be collected.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of November, 2000