The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 22, 2005, at the worker's request. The Panel discussed this appeal on the same day.

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

In January 1996, the worker incurred a right eye injury during the course of his employment. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly. As the worker's right eye injury prevented him from returning to his pre-injury job, the worker returned to alternate work duties with lower earnings.

On August 21, 2000, a WCB payment assessor informed the worker that he had been overpaid benefits in the amount of $52.59 as the WCB was not aware that he had received an increase in earnings. The worker was also advised that he was responsible for repaying the full amount of his overpayment. On September 11, 2000, the worker appealed this decision to Review Office.

In a September 2000 decision, Review Office determined that the worker had been overpaid $52.59 and that the overpayment had to be repaid. Review Office indicated that the manner in which the worker's partial wage loss benefits were calculated was entirely consistent with The Workers Compensation Act (the Act) and policy. The decision to recover the overpayment was in line with the provisions of WCB policy 35.40.50, Overpayments of Benefits.

In a letter dated December 3, 2001, a WCB case manager explained to the worker that the recent decrease in his partial wage loss benefits was the result of his gross earnings through employment increasing from $610.77 per week to $719.65 per week. The increase in gross earnings caused a decrease in his partial wage loss benefits from $363.14 bi-weekly to $270.46 biweekly or a difference of $92.68 bi-weekly. The worker disagreed with this decision and asked that his case be forwarded to Review Office for consideration.

On January 10, 2002, a WCB Review Officer documented a telephone conversation that he had with the worker. He stated that the worker's main concern was that the calculation of his wage loss benefits were not being calculated in the way he was told they would be. The Review Officer advised the worker that "if he had been told they would be calculated differently (e.g. not taking overtime earnings into account) then he had been given wrong information. He was told I could not approve calculating benefits in a manner other than that provided under the Act and related policies."

In a Review Office decision dated January 11, 2002, it was determined that the worker's wage loss benefits had been correctly calculated by the WCB and that nothing had changed since the previous Review Office decision.

On July 8, 2003, the WCB advised the worker that he had been overpaid in the amount of $3779.77 and that the overpayment occurred because he was paid partial wage loss benefits based on estimated earnings rather than actual earnings. The worker appealed this decision to Review Office.

Review Office wrote to the worker on November 17, 2003 and again on November 3, 2004. On November 3, 2004, Review Office provided the worker with an explanation as to how the WCB calculates a worker's entitlement to wage loss benefits. Review Office also advised the worker that his case would be referred back to Rehabilitation and Compensation Services to recalculate his wage loss entitlement beginning in December 1998 using maximum insured earnings of $50,380.00.

In a letter dated February 14, 2005, the WCB advised the worker that his benefits had been recalculated dating back to December 3, 1998. Based on these calculations, the worker was overpaid benefits in the amount of $3,203.85. In March 2005, the worker disagreed with the decision and the case was referred back to Review Office for consideration.

On March 31, 2005, Review Office indicated that the overpayment calculations noted in the February 14, 2005 letter were correct with the following exception, i.e. that the worker was overpaid $377.24 for 2003 but that he was not required to make restitution. Review Office determined that the overpayment amount of $377.24 was correct but the worker was required to make restitution of this amount. This brought the overpayment to $3581.29 ($3,203.85 + $377.44). Review Office further determined that the worker's case did not meet any of the provisions of Policy 35.40.50, Overpayment of Benefits, and that the worker would have to make restitution of the balance that had not been previously recovered. On April 27, 2005, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

After carefully verifying all of the calculations performed by the WCB with respect to the overpayment, we find that these calculations were accurately computed in accordance with the Act and the policies of the Board of Directors. In addition, no errors were identified by the worker at the hearing. We therefore find that the worker has been overpaid and that the overpayment should be collected.

We note, however, the worker's comment about presently being on a fixed income and the impact repayment in a lump sum would have on his available resources. It is our recommendation that the worker and the WCB attempt to reach an accommodation with respect to a mutually agreed upon repayment plan.

The worker'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 10th day of August, 2005