Decision #133/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 23, 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 recovered.

Decision

That the worker has been overpaid;

That the overpayment should be recalculated; and

That the overpayment should be recovered.

Decision: Unanimous

Background

On January 26, 2004, the worker sustained an injury to his right hand during his employment activities as a process technician. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing January 27, 2004.

On November 18, 2004, a WCB case manager documented a phone conversation that she had with the worker. The worker was advised that a report had been received from his treating physician indicating that he was fit to return to his pre-accident duties effective November 4, 2004. Based on this information, the worker was not entitled to wage loss benefits beyond November 3, 2004.

In a letter dated January 4, 2004, it was confirmed to the worker that he was overpaid benefits in the amount of $1063.39. The overpayment occurred based on medical information which showed that he was fit to return to work effective November 4, 2004 but was paid full wage loss benefits to November 19, 2004.

In a letter dated January 31, 2005, a worker advisor appealed the WCB's decision of January 4, 2005. The worker advisor outlined her position that the overpayment was due to a WCB administrative error and that the WCB should discontinue the collection of the overpayment. Included with the submission was a statement written by the worker dated January 31, 2005.

In a decision dated March 16, 2005, Review Office confirmed that the worker had been overpaid; that the overpayment should be recalculated; and that the overpayment must be repaid. With regard to the first decision, Review Office referred to subsections 39(1), 39(2) and 60(2) of The Workers Compensation Act (the Act). Review Office agreed with the case manager that the worker was not entitled to further benefits as he no longer had a loss of earning capacity given that he was declared fit to return to work by his doctor. Review Office determined that the worker was entitled to benefits up to November 4, 2004 inclusive as the worker saw his doctor on November 4, 2004 and it was unreasonable to expect that he would have been able to return to work that day.

Review Office noted that the worker did not have a job to return to because of business decisions made by his ex-employer, not because of his compensable injury. He was therefore not entitled to vocational rehabilitation assistance and as such, there was no entitlement to benefits beyond November 4, 2004.

With regard to the third issue, Review Office was of the opinion that the worker's circumstances did not meet any of the required criteria for non-pursual of recovery of an overpayment. On May 9, 2005, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

The evidence on file reveals that the worker maintained what can best be described as a passive relationship with the WCB. He testified at the hearing:
"If you look at the file, the case file, the majority of the contact was initiated by myself, and the calls that the WCB made to me were mostly in response to some of the calls that I made for information on them."
The worker was under the impression following receipt of a letter from the case manager dated August 30, 2004 that he would be contacted by the WCB and he waited for that contact. The letter reads in part as follows:
"As discussed, the WCB reviews entitlement to wage loss benefits based on medical findings to support disability from pre-accident duties. The current medical findings support that you are capable of performing modified duties however your employer is unable to provide you with modified duties and as such, you continue to be entitled to full wage loss benefits. Once a consultation with a WCB medical advisor is complete I will contact you to arrange a meeting to discuss the ongoing management of your claim." (Emphasis ours)
On November 4, 2004, the treating physician faxed a copy of his progress report to the WCB. In that report he advised "Referral to Dr. [name] for 2nd opinion re: residual decreased ROM [range of motion] at DIP joint." This fax certainly confirms that the WCB had actual knowledge of the worker's work capability at this time.

At the hearing the worker testified that he "was under the impression that a return to work plan was supposed to be implemented, that the WCB was supposed to be there from the time of the injury until the time I went back to work, and that was not the case. As soon as they saw on the doctor's report that I was supposed to return to work that day, it seemed that all support was finished at that point."

The attending physician's November 4, 2004 progress report indicated that the worker could return to regular duties on that date. However, the worker's evidence at the hearing should be given some weight.

"When I went to see the doctor on November 4th, we had talked about my injury. We had talked about how amazed he was at the recovery process that I've accomplished, given the fact that I should have lost that finger.

We talked about the problem I was having with my DIP joint, that it wasn't functioning as it should, and we talked about the pros and cons of additional surgery, which could affect the PIP joint and the functionality of it.

We also debated whether or not additional surgery would help or hinder the progress of the recovery, but he also stated that he wasn't comfortable in performing any other additional surgeries, but he said he would refer me to another specialist for a second opinion.

So I didn't contest going back to work, but the case manager also knew, prior to November 4th, that I had a doctor's appointment on that date and that we were going to be discussing the possibility of additional surgery or a trial at going back to work."

WCB policy 44.30.60, Notice of Change in Benefits or Services, provides that "Any person who may lose some benefit, payment or service should be told about the change before it actually happens. This means that 'notice' is provided to the person before the change happens." The policy distinguishes between changes that are required by the Act or WCB policy and changes that are discretionary. Discretionary changes are only made with advance notice of the decision to the worker, employer and healthcare provider. Required changes may be made without advance notice.

Section 2 a. of the policy provides examples of changes required by the Act or WCB policy such as where the worker returns to work or has been informed by a healthcare practitioner that he/she is fit to return to the pre-injury work. We find, in the circumstances of this case, that the WCB was required to make the change it did.

Even though the policy does not require the WCB to provide advance notice of the termination of benefits, the panel notes the WCB can provide advance notice and in our opinion should do so in accordance with the intent of the policy.

In this situation, we consider seven calendar days of notice was reasonable and should have been provided to the worker. Accordingly, the worker is entitled to wage loss benefits to November 12, 2004 inclusive.

The WCB should recalculate the overpayment based on the extension of wage loss benefits outlined above. When recalculated, the worker is responsible for repayment of the amount owing.

The worker's appeal is allowed in part.

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

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