Decision #83/01 - Type: Workers Compensation

Preamble

A non-oral file review was held on May 10, 2001, at the request of the claimant.

Issue

Whether or not the worker has been overpaid; and

Whether or not the overpayment should be collected.

Decision

That the worker has been overpaid; and

That the overpayment should be collected.

Decision: Unanimous

Background

While employed as a cabinet marker on July 30, 1993, the claimant was cutting a piece of melamine with the rolling part of a table saw when he injured his right hand. The claim was accepted as a Workers Compensation Board (WCB) responsibility and various benefits were paid to the claimant.

On August 11, 2000, the claimant was advised by the WCB that he had been overpaid in the amount of $2,170.43. The letter stated that the claimant had been receiving partial wage loss benefits based on anticipated earnings of $525.00 per week. After a review of the claimant's 1999 tax return, his 1999 earnings were $30,999/52.14 weeks = $594.53 per week. This necessitated a revised benefit calculation, resulting in an overpayment for the period January 1 to December 31, 1999 ($2,170.43). The claimant was advised that he must repay the full amount back to the WCB.

On December 29, 2000, Review Office considered the case following receipt of an appeal from the claimant. The claimant argued that during 1999 he had provided the WCB with all the information required to ensure that he was not being overpaid. The claimant was of view that the WCB did not react appropriately to the information and as a result his benefits continued to be paid at too high a rate. The claimant was of the further opinion that it was the WCB's fault he had been overpaid and that he should not be held responsible to repay the overpayment.

In its decision of December 29, 2000, Review Office determined that the claimant was overpaid and that the overpayment should be collected. Review Office stated there was no question that the claimant was overpaid benefits in 1999. His annual wages were approximately $31,000, some $4,500 greater than the estimate. The provisions of WCB policy 35.40.50 deal with the question of when a claimant would be required to make restitution.

Review Office noted that in early 1999 the WCB had sent the claimant several requests for details with respect to his wages. When he did not respond, the claimant was contacted. In a letter dated April 1, 1999, the claimant indicated that he had earned $1359.00 in overtime in the first 12 weeks of 1999. This was an average of $113 over the claimant's base wage of $480, for a total wage of $593. At that time the estimate was $480.

In April 1999 the WCB sent the claimant a letter indicating that the estimated base wage rate was $480. The claimant was also asked to contact the WCB if his earnings were higher than the above amount. On April 22, 1999, the claimant spoke with a WCB staff member and was advised that he had been overpaid an undetermined amount in 1998. The claimant confirmed that he had overtime earnings in 1999 and that he said that he did not expect any more that year. The estimated base wage rate was increased to $510 as of April 26, 1999.

In May 1999 the claimant's income tax information confirmed that he had been overpaid $878.77 for 1998. This sum was eventually recovered by the WCB. The payment assessor suggested raising the estimated base wage rate to $530 or $540. It was raised to $525 effective May 31, 1999, following another review. At that time, it was noted the claimant earned, on average, $512.20 in 1998.

Review Office took note that on October 27, 1999, the claimant advised the WCB he had overtime wages of $2,214 from March 27, 1999 to September 24, 1999. This meant that his total wage during this period averaged $565. The WCB did not increase the estimate and continued payment of benefits at the previous rate of $525. In July 2000 the claimant was advised that he had been overpaid $2170.43 for 1999. The claimant's benefits were also suspended as it was recognized that he had likely been overpaid for 2000, given the estimated base wage rate remained at $525.

Review Office was of the opinion that the claimant must bear responsibility for the creation of the $2,170.43 overpayment. Increasing the estimate in April and May 1999 was appropriate. By doing so, this recouped the overtime earnings the claimant had in the first quarter of 1999. No further allowance for any future overtime earnings was made because the claimant indicated that he would not have more overtime earnings that year. Review Office made note of the fact that the claimant did not advise the WCB overtime work in the second and third quarters until late October 1999.

Review Office was of the view that the claimant was or should have been aware that he was being overpaid and he should have made more of an effort to advise the WCB that he was being overpaid. The claimant had an onus to contact the WCB when it did not respond appropriately to the information he provided in October 1999. He did not do so. On February 23, 2001, the claimant appealed Review Office's decision and a non-oral file review was conducted.

Reasons

The file reveals that the claimant has a history of being overpaid on more than one occasion by the WCB. These situations arose because of his working overtime and his failing to report the resulting additional income to the WCB. The claimant was well aware of the fact that the calculation of his wage loss benefits was based strictly on his working a regular number of hours per each daily shift. According to a memorandum dated April 22nd, 1999, the claimant had indicated to a WCB employment specialist that any overtime earnings for 1999 would be limited to the period of January 2nd, 1999 to March 26th, 1999. However, it was not until October 27th, 1999 when the claimant chose to advise the WCB that he had earned overtime wages of $2,213.00 during the period of March 27, 1999 to September 24, 1999. It was this omission, which gave rise to the claimant's being overpaid by the WCB.

We find based on the evidence the claimant knew or ought to have known that it was incumbent upon him to inform the WCB in a timely manner of any overtime earnings in order to avoid such an overpayment situation. There is no question in this case that the claimant has been overpaid and that the overpayment should be collected. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 15th day of June, 2001

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