Decision #74/99 - Type: Workers Compensation
An Appeal Panel hearing was held on March 30, 1999, following receipt of an appeal from the claimant. The Panel discussed this appeal on March 30, 1999.
Whether the claimant is required to repay the overpayment.
That the claimant is required to repay the overpayment.
This claim has been the subject of a previous Appeal Panel hearing with respect to an issue of whether the taxable allowance resulting form the worker's use of a company vehicle should be included when calculating his post-accident earning capacity (Decision No. 48/98). As complete details of the case can be found in decision 48/98, they will not be repeated in their entirety at this time.
Briefly, the claimant sustained a lower back injury on August 24, 1990, while trying to prevent an automobile door from falling. The claim was accepted by the Workers Compensation Board (WCB) and benefits were extended to the claimant.
The claimant subsequently returned to light duty employment and the WCB then established a post accident earning capacity at a rate of $230.00 per week which remained unchanged from 1991 to 1993. A review of the claimant's post-accident earning capacity revealed that the claimant had been overpaid in the amount of $11,534.83. Of this amount, the WCB wrote off $2,331.62 leaving an outstanding overpayment in the amount of $9,203.21. The WCB determined that the majority of the overpayment was incurred as a result of the claimant's use of a company vehicle. This issue was addressed by a previous Appeal Panel, who determined that the taxable allowance resulting from the use of the vehicle should be used in calculating the claimant's post-accident earnings.
In light of the Appeal Panel's decision, the WCB undertook to recover the outstanding overpayment. File documentation reveals that a portion of the overpayment was refunded to the WCB, but as of October 1998, there remained a balance owing in the amount $1,509.12.
The issue relating to repayment of the overpayment was appealed to the WCB's Review Office. The claimant argued that repayment of the outstanding amount would result in undue hardship. As well, the claimant took the view that as he had returned to suitable work rather than continue to collect full WCB benefits, this actually resulted in saving the WCB money and therefore he should not be obliged to make repayment.
In a letter, dated January 22, 1999, the Review Office addressed the issue of repayment. In determining that the claimant must repay the amount, the Review Office noted the claimant did not co-operate with the WCB's Collection Unit when asked to provide financial information in order to determine whether the claimant would meet the criteria for undue hardship. In light of this and in accordance with WCB policy 35.40.50, Review Office determined that the outstanding overpayment would have to be refunded to the WCB.
On February 18, 1999, the claimant completed an application to appeal requesting that a hearing be convened before the Appeal Commission. The oral hearing was convened on March 30, 1999.
In its decision no. 48/98, the Appeal Commission determined that the claimant's use of company vehicle was a taxable benefit and should be included in the calculation of his post-accident earning capacity. The inclusion of this benefit in the calculation formula put the claimant into an overpayment situation. WCB policy 35.40.50 dealing with overpayment does not allow for forgiveness in situations where no financial hardship has been demonstrated. There was no evidence presented in this case which would lead us to conclude that repayment of the overpayment would create financial hardship for the claimant. Therefore, the full amount of the overpayment must be repaid to the WCB.
R. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of May, 1999