Decision #69/99 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on March 18, 1999, at the request of the claimant.

Issue

Whether the worker has been overpaid wage loss benefits in the amount of $10,784.34; and

Whether the worker is liable to make restitution of this amount by refunding the full amount of the overpayment to the WCB.

Decision

That the worker has been overpaid wage loss benefits in the amount of $10,784.34; and

That the worker is liable to make restitution of this amount by refunding the full amount of the overpayment to the WCB.

Background

On March 7, 1995, the claimant was employed as a mine shaft inspector when he sustained a compensable right upper leg injury after the floor he was walking on gave way. As a result of the accident, the claimant was awarded workers compensation benefits commencing March 8, 1995.

In January 1998, the case was the subject of an Appeal Panel review to determine whether it was appropriate for the Workers Compensation Board (WCB) to reduce the claimant's wage loss benefits due to the receipt of a collateral benefit. In this regard, the claimant was receiving monies from a private insurance company since September 1, 1995. Under Decision No. 26/98, dated February 13, 1998, the Appeal Commission decided that it was appropriate for the WCB to establish a wage loss payable to the claimant by taking into consideration any collateral benefit he may have received or had received as a result of his compensable injuries.

On August 5, 1998, the claimant was advised by a senior payment assessor that the private disability benefits in the amount of $1000.00 per month were considered as collateral benefits. This resulted in a reduction of the claimant's weekly compensation rate. The claimant was also advised that because he had been paid at an inflated rate, he had therefore been overpaid in the amount of $10,947.29.

On October 23, 1998, the Review Office acknowledged receipt of the claimant's appeal letter in which he expressed disagreement with the decision that he was overpaid wage loss benefits. On November 20, 1998, the Review Office determined that the worker had been overpaid wage loss benefits in the amount of $10,784.30 and that he was liable to make restitution of the full amount of the overpayment to the WCB.

The Review Office stated that the Appeal Commission had already confirmed the WCB's right to consider the benefits the worker was receiving from his private insurance plan to be collateral benefits within the meaning of that term in Section 41 of the Workers Compensation Act (the Act). The insurance company issuing the monthly disability benefits confirmed to the WCB that the worker had been in receipt of $1000.00 per month since September 1, 1995, and that the worker had been cashing their cheques. The Review Office found that the insurance company benefits had been correctly taken into consideration as a collateral benefit, thus resulting in the overpayment to the worker.

With regard to the second issue involving the repayment of the outstanding debt, the Review Office made reference to the WCB's overpayment policy 35.40.50. The Review Office stated there was no indication on file that the collection of this overpayment would create an undue hardship as this term is defined by the policy. As a result, the Review Office was of the view that the worker was liable to repay the overpayment to the WCB. The claimant subsequently appealed this decision and on March 18, 1999, an Appeal Panel review occurred at the Appeal Commission.

Reasons

In addition to receiving WCB benefits as a result of his compensable injury, the claimant also received benefits under a policy of disability insurance. The Appeal Commission determined in decision 26/98 that the WCB had the right, under the provisions of the Workers Compensation Act (the Act), when establishing the claimant's wage loss, to include the disability insurance proceeds as a collateral benefit. As a consequence of this ruling, the claimant ended up in an overpayment situation and hence he brings this appeal.

With respect to the first issue, we find that the claimant has been overpaid wage loss benefits in the amount of $10,784.34 by the WCB.

Although the claimant was receiving private insurance funds in addition to his WCB benefits, there is absolutely no evidence to suggest that there was any fraud on the part of the claimant in collecting from both sources. As well, there has been no evidence presented to suggest that there would be a great deal of hardship created should the claimant be required to repay the amount of the overpayment.

We find that the claimant is liable to make full restitution of the amount of the overpayment being $10,784.24 . However, we recommend and suggest that a reasonable and orderly repayment schedule be established by the parties.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of May, 1999

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