The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on March 2, 2006, at the worker's request.

Issue

Whether or not the worker has been overpaid;

Whether or not the overpayment has to be repaid; and

Whether or not the worker can receive a lump sum settlement of her permanent partial impairment award at this time.

Decision

That the worker has been overpaid;

That the overpayment has to be repaid; and

That the worker cannot receive a lump sum settlement of her permanent partial impairment award at this time.

Decision: Unanimous

Background

On February 12, 1987, the worker injured her back during the course of her employment as a cash office specialist. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid to the worker which included a permanent partial disability (PPD) award and special additional compensation (SAC). The worker is also in receipt of Canada Pension Plan (CPP) disability benefits.

In a decision dated April 8, 2005, a WCB case manager advised the worker that she was overpaid benefits in the amount of $14,858.21 and that the overpayment had to be repaid to the WCB. The letter stated, "The overpayment occurred because of the recalculation of your wage loss benefits based on your revised CPP benefits. As a result of your request for a review of your CPP benefits under the Child Rearing Drop Out provision, your CPP rate was increased retroactively for the period March 1989 to September 2004 thereby causing you to be overpaid."

The worker then asked the WCB to provide her with a lump sum settlement (LSS) of her PPD award in order to repay the overpayment. On July 21, 2005, the WCB case manager denied the request based on the guidelines outlined under WCB policy 44.100.10, Lump Sum Commutations.

On July 27, 2005, the worker appealed the decision to deny her request for a lump sum payment of her pension and presented argument that she was unable to afford a monthly deduction from her WCB benefits. The case was forwarded to Review Office for consideration.

On October 17, 2005, Review Office confirmed that the worker had been overpaid and that the overpayment had to be repaid. Review Office further determined that the worker was not entitled to receive a LSS of her PPD award at this time.

With respect to the first and second issues, Review Office noted that the worker received a retroactive increase in her CPP during a period she was in receipt of SAC. Therefore, the WCB policies required that in such circumstances SAC be reduced by the CPP payment. Review Office concluded that the overpayment had to be repaid in accordance with section C.4 of WCB Policy 35.40.50, Overpayments of Benefits.

With respect to Review Office's decision that the worker was not entitled to a LSS, Review Office applied Section B.5 of policy 44.100.10, Lump Sum Commutations which provided that commutations not be granted where the worker's pension is above the amounts established in this policy and the worker is in receipt of SAC.

Given that the worker's PPD was more than double the amount established by policy and she was in receipt of SAC, Review Office said it followed that the worker was not eligible for a LSS at this time. Review Office recommended that a lenient overpayment recovery schedule be developed.

On October 25, 2005, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Worker's Submission

The worker wrote to the Appeal Commission on February 8, 2006 in support of her appeal. She described the impact that the accident has had on her life. With respect to the receipt of the CPP adjustment, she advised that she reported the payment to the WCB and waited until she was she was told by the WCB that she could keep the payment. She believes that WCB made a mistake advising her that she could keep the payment and then determined that she had an overpayment. She also asked for an explanation of why she cannot receive a lump sum payment of her PPD award at this time.

In addition to the worker's written submission, the panel had a full copy of the worker's WCB claim file which included other submissions by the worker.

Analysis

The worker has appealed three issues. As a general comment in dealing with these issues, the panel notes that these matters all deal with the application of existing WCB policies. Under subsection 60.8(6) of The Manitoba Workers Compensation Act (the Act), the panel is bound by these policies in making its decisions.

The first issue is whether the worker has been overpaid. The evidence on the file is that the worker received an adjustment in her CPP benefits under the CPP Child Rearing Drop Out provision. The worker's CPP benefits were increased retroactively for the period from March 1989 to September 2004. In accordance with WCB policies, SAC benefits are to be reduced by the amount of CPP benefits received. The panel therefore finds that the worker has been overpaid.

The second issue is whether any overpayment has to be repaid. WCB Policy 35.40.50, Overpayments of Benefits, deals with the recovery of overpayments. The panel finds that section C.4(ii) is applicable to this appeal. This section provides:

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

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

Pursuant to the above noted policy the worker's overpayment is to be recovered. Given the circumstances of the overpayment and the worker's financial situation, the panel agrees with the Review Office recommendation that a lenient overpayment recovery schedule should be developed.

The third issue raised in this appeal is whether the worker can receive a lump sum settlement of her permanent partial disability award at this time. As with the other issues raised in this appeal, the answer is governed by WCB policy. Specifically WCB Policy 44.100.10, Lump Sum Commutations applies to this request. The panel notes that section B.5 provides:

FUTURE FINANCIAL HARDSHIP - SPECIAL ADDITIONAL COMPENSATION OR LONG -TERM WAGE LOSS

If the worker's pension is above the amounts established in this policy and the worker is in receipt of Special Additional Compensation or long-term wage loss, the WCB has already recognized that the pension is "a significant amount of the worker's future income" and the commutation will not be granted.

The panel notes that the worker's pension is greater than the amount established in this policy. The panel finds that the worker's pension is a significant amount of the worker's future income and that in accordance with this policy, the commutation should not be granted.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of April, 2006