The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 16, 2001, at the request of the claimant. The Panel discussed this appeal on August 16, 2001 and again on September 20, 2001.

Issue

Whether or not Canada Pension Plan disabled contributor benefits should be taken into account when calculating the worker's vocational rehabilitation benefits; and

Whether or not the worker has been overpaid; and

Whether or not the overpayment should be recovered.

Decision

That Canada Pension Plan disabled contributor benefits should be taken into account when calculating the worker's vocational rehabilitation benefits; and

That the worker has been overpaid; and

That the overpayment should be recovered.

Background

The claimant was involved in a motor vehicle accident on October 21, 1990 when he was hit by another car on his way to the office. The claim was accepted as Workers Compensation Board (WCB) responsibility and various benefits were paid to the claimant including a 30% permanent partial disability award for a compensable brain injury.

In a letter dated May 11, 1999, a supervisor with the WCB's Rehabilitation & Compensation Services advised the claimant that it had been determined that his claim status was stable and would not change. There was sufficient evidence to support that a return to full-time employment was not realistic. The letter further stated, "Consistent with the WCB Act (pre- and post- 1992) and associated policies and directives, once your claim status is stable, the Workers Compensation Board of Manitoba will be considering your CPP disability benefits as income." In order to calculate his benefit level, the claimant was asked to sign the appropriate release forms to allow the WCB access to information from Revenue Canada and CPP.

In a memo to file dated May 26, 1999, the Rehabilitation & Compensation Services supervisor instructed the WCB's payment division to deduct CPP disability estimated at $400/month from the claimant's benefit level until confirmed.

In a letter dated November 23, 2000, a WCB payment assessor indicated to the claimant that confirmation had been received (through the Government of Canada, Income Security Program) as to the amount of CPP benefits that he was receiving monthly. As this amount was greater than the estimated amount used by the WCB, this resulted in an overpayment that was to be recovered from the claimant. On November 30, 2000 the claimant appealed this decision to Review Office.

In a decision dated February 2, 2001, Review Office determined the following with regard to the claimant's appeal:

That Canada Pension Plan disabled contributor benefits should be taken into account when calculating the claimant's vocational rehabilitation benefits.

Review Office made reference to Subsection 60(1) of the Workers Compensation Act in reaching its decision. Review Office indicated that the deduction of CPP from vocational rehabilitation benefits on claims for injuries occurring before 1992 is not covered by any policy. As long-standing practice is to do so, Review Office saw no basis for changing it.

That the claimant has been overpaid.

Review Office was of the opinion that since it was accepted that CPP should be deducted from vocational rehabilitation benefits, it followed that the claimant was overpaid.

That the overpayment should be recovered.

It was determined by Review Office that the overpayment should be recovered in accordance with WCB Policy 35.40.50, Overpayments of Benefits.

The claimant later appealed Review Office's decisions and an oral hearing was arranged.

Reasons

This claim involves a worker who was permanently disabled from work as a result of an automobile accident in 1990. His claim was accepted as a compensable injury and benefits paid. He has been determined to have a permanent partial disability, rated at 30%.

At issue in this appeal is whether or not his WCB benefits should be reduced by the amount of the disability benefits he receives from the Canada Pension Plan. Ancillary issues are whether or not he has been overpaid by the WCB and, if so, whether or not such overpayment should be recovered.

In order for this appeal to succeed, the Panel must determine that benefits such as those from CPP are not to be included, by the Board, in its determination of other qualifying income when calculating the amount of benefits to be paid to a claimant. Our decisions on the second and third issues will flow from our decision in respect of the first issue.

By way of context, we note that, under the current legislation, determination of the deductibility of CPP disability benefits would be straightforward. Subsection 41(1) of the statute defines a "collateral benefit" as including CPP benefits; and subsection 41(2) states that collateral benefits are to be included as earnings when determining the amount of wage loss benefits to be paid.

However, the claimant's injury occurred in October 1990 and is governed by the provisions of the previous statute, which will be discussed below.

On the principal issue, we have concluded that the board is correct in including the value of the claimant's CPP benefits as other income and deducting this amount from his rehabilitation benefits. As a result of this conclusion, we also find that an overpayment did occur and that this overpayment must be recovered.

We note that the Review Office, in its decision, noted that, although there was no specific policy in place stating that CPP disability benefits were to be included as income, it had been longstanding board practice to do so. We note, however, that other board policies, in effect at that time and governing other types of compensation payments, do specify that CPP disability benefits are to be included as income and deducted from benefits paid to a claimant.

The panel is of the view that the Board's longstanding practice is, in fact, based on the statute that was in effect at the time of the claimant's accident. Subsection 40(1) of the Act, in place at that time, reads:

Where permanent partial disability results from the injury, the board shall allow compensation in periodical (sic) payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.

The benefits paid to the claimant reflect this principle. His total benefit is established at 75% of his insurable earnings, from which is deducted the amount received from the Canada Pension Plan. To allow the claimant to receive full compensation benefits, plus his CPP disability payments, would place him above the 75% of average earnings allowed by the act.

In respect of the overpayment, we note that the claimant was largely the author of his own problems in that he refused to give the necessary information to the board, when requested. As a result, the board deducted an estimated amount. It was almost a year and a half before the board received the accurate information, which turned out to be significantly higher than the estimate. As a result, he had been overpaid throughout that period.

In considering the issue of whether or not the overpayment is to be recovered, we had considerable sympathy towards the claimant. However, this situation is one where we have no discretion.

Pursuant to subsection 60.8(6) of the Act, the appeal commission is bound by the policies of the WCB Board of Directors. Board policy 35.40.50, "Overpayment of Benefits", states in section C, Part 4:

Despite the provisions in Part 3, overpayments will be pursued for recovery where the following circumstances apply: 

....

2. the overpayment represents a duplication of benefits paid from another source for the same injury, for example Long Term Disability or CPP Disability benefits.

As a result, we have no option but to conclude that the overpayment must be recovered.

The claimant also presented evidence to the Panel in support of an argument that his insurable earnings should be calculated at a much higher level. However, as this issue was not before the Panel, we could not consider it. We advised the claimant to take this matter up with the board.

In conclusion, we hold that the decision of the Review Office is to be upheld.

Accordingly, the appeal is not successful.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of October, 2001