Decision #27/03 - Type: Workers Compensation
Preamble
At the request of the claimant, an Appeal Panel hearing was held on October 30, 2002. The Panel discussed this appeal on October 30, 2002 and March 3, 2003.Issue
Whether or not the claimant has been overpaid; andWhether or not the overpayment has to be repaid.
Decision
The claimant has not been overpaid. The question of repayment is therefore moot and does not need to be considered.Decision: Unanimous
Background
This decision considers the appropriate application of Workers Compensation Board Policy 44.80.10.10, Average Earnings as it applies to averaged concurrent earnings.On June 9, 2001, the claimant injured himself in the course of his job. His claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid up to September 30, 2001 when he returned to work with the accident employer.
On September 25, 2001, the claimant advised the WCB that he had a second job at the time of his June 9, 2001 accident and returned to work at that job on July 27, 2001. Taking into account the income from his second job, the WCB recalculated his level of pre and post accident average earnings and concluded that the claimant had been overpaid. The Overpayment Summary Report dated October 4, 2001 indicates that the cause of the overpayment was that the claimant had concurrent earnings and was still working after the date of the accident.
In a letter dated October 29, 2001, primary adjudication told the claimant that an overpayment had been found. The reason this overpayment occurred was you increased the amount of hours you were working for your other employer, [name]. The total amount of the overpayment is $2453.23. The claimant was advised that the overpayment must be repaid and that he could contact the WCB to work out a repayment plan. A break-down of the overpayment calculation was provided to him on December 4, 2001 by a WCB Case Manager.
On January 17, 2002, the claimant appealed the October 29th decision to the Review Office. In a letter date stamped January 23, 2002, the claimant expressed the view that his earnings from his second employer in 2000 and 2001 were comparable in dollar value.
The Review Office rejected his appeal in its decision of March 8, 2002. It stated that the manner in which the claimant's wage loss benefits were calculated was entirely consistent with The Workers Compensation Act (the Act), WCB policy and practice. In the view of Review Office, as required, the WCB used the claimant's actual earnings during the period he was in receipt of wage loss benefits to calculate his wage loss benefit entitlement. It also held that the overpayment did not meet the criteria for non-collection and that it must be repaid. The Review Office decision noted that:
"on September 25, 2001, the claimant advised the WCB that at the time of his injury he had a second job. He noted that his injury had not caused him to cease working at it. The claimant was advised that his pre-injury average earnings would be increased to take into account his second job and that his wage loss benefits would have to be adjusted to account for his post-injury earnings from it. (emphasis added)"On August 8, 2002, the claimant appealed the Review Office's decision to the Appeal Commission. An oral hearing was held on October 30, 2002. At the hearing, the claimant took the position that when one considered the entirety of the period between June 9, 2001 and September, 30, 2001, his earnings from the second job were similar in 2001 to the previous years.
Following the hearing and discussion of the case, the Panel requested that the claimant provide his T4s and income tax returns for the year 1999. It also asked his second employer for additional information about his 1999 earnings. Once this information was received, it was forwarded to the claimant. No additional comment was received.
On March 3, 2003, the Panel met to discuss the new evidence and to make its decision.
Reasons
From the submission made by the claimant, the issue of whether he has been overpaid, depends on whether his benefits had been calculated correctly in the first place. Therefore, the determination of this appeal requires a consideration of Workers Compensation Board Policy 44.80.10.10, as it applies to average earnings.The existence of an overpayment implies that there is a variance between what the claimant has received, and what he is entitled to receive in wage loss benefits under the Act and WCB policies. This requires, at first, an accurate calculation of the employment income lost as a consequence of a workplace accident or disease. As stated in the general purpose section of the policy:
- the workers compensation system is designed to replace the employment income lost as a result of a workplace accident or disease. (p. 1)
- the method used will always be the one that best reflects the worker's actual loss of earnings. (p. 1)
Based on the review of the evidence, the panel is satisfied that in calculating the workers average earnings, the method that best reflects the workers average earnings is calculation of average yearly earnings.
Based upon his T4's, the claimant's total income was about $33,600 in 1999 and about $35,300 in 2000. These figures are quite comparable to what his income was projected to be in 2001 ($35,303.84) based upon his projected earnings from his first job and his actual earnings from his second (Benefit Calculation Report dated 10/10/2001). The panel also took the opportunity to consider the amounts the claimant earned from his second job in all three years and within the June to September period for all three years.
The Panel is satisfied that the claimant did not increase his earnings from the concurrent employment (second job) over the course of the year in which he was injured. In this respect, our conclusion is different from that reached by the Review Office. He did work his second job during a shorter time period but was not placed in an advantaged position in terms of income replacement from his concurrent employment. The panel therefore concludes the claimant has not been overpaid. The second question of whether the overpayment must be paid is therefore moot.
Panel Members
B. Williams, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
B. Williams - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of March, 2003