The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

Section 109.2 of The Workers Compensation Act provides that an overpayment arises where a worker receives an amount that the WCB determines is in excess of that to which the worker is entitled. This section also provides that the WCB may recover an overpayment as a debt due to the WCB.

The Board of Directors of the WCB has made WCB Policy 35.40.50, Overpayment of Benefits (Overpayment Policy). This policy provides, in part; as follows:

Overpayment Recovery Criteria

3. All overpayments receivable will be pursued for recovery, unless:

(i.) they resulted from an adjudicative reversal or a reconsideration decision by the WCB, or from a decision of the Appeal Commission; or

(ii.) they resulted from either an administrative error by the WCB, or the receipt of incorrect information from an employer that affected eligibility or the amount payable. The exception to this provision is that the overpayment will be pursued if the WCB considers that the error or incorrect information was so material or obvious that the worker should have recognized it and reported it to the WCB; or …

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

(i.) there was fraud, deliberate misrepresentation or withholding of key information affecting benefits entitlement; or

(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.

Worker’s Position

The worker provided a written submission dated October 10, 2006 with his appeal form. He expressed the opinion that there is a misunderstanding regarding the $6,000.00 he received from his employer as a bonus in 2004. He advised that the bonus was given to him during 2004 as an act of appreciation for the good work that he did. He stated that he did not know how much bonus he received until he got his T4 slip. He advised that he promptly told the WCB once he received his T4 slip and was aware of the amount.

The worker also provided a further written submission dated December 23, 2006.

Analysis

There were two issues before the panel. The first issue is whether the worker was overpaid $12, 940.36. For the appeal to succeed the panel must find that the worker was entitled to keep all WCB wage loss benefits that were paid to him during the period in question. The panel could not make this finding. The panel finds that the worker was overpaid $12,940.36. The second issue before the panel was whether the overpayment, specifically $6,858.12 of the overpayment, must be repaid. For the appeal of this issue to be successful, the panel must find that this sum is not repayable in accordance with the Overpayment Policy. The panel was not able to make this finding. The panel found that the sum of $6,858.12 is repayable in accordance with this Policy.

A review of the file confirms that the worker was paid $12,940.36 more benefits than he was entitled to receive. This is an overpayment in accordance with the Act. The overpayment relates to benefits paid during two periods. The overpayment for the period January 1, 2004 to April 30, 2005 arose because the worker received additional income from his employer (bonus of $6,000.00) in 2004 and did not advise the WCB until 2005. Had the worker advised the WCB about the additional income, the WCB would have been able to recalculate the worker’s benefits and pay the worker less benefits. The amount overpaid for 2004 is $4,235.76 and for January 2005 to April 2005 is $2,622.36, for a total of $6,858.12.

There is a second period during which the worker was overpaid. The amount of the overpayment during the second period, May 1, 2005 until January 31, 2006, was calculated by the WCB as $6,082.24. During this period, the WCB received information about the worker’s income but did not review the information and did not adjust the worker’s benefits. This overpayment could have been avoided had the WCB acted on the information.

With respect to the second issue, the panel finds that the overpayment of $6,858.12 for benefits received between January 1, 2004 and April 30, 2005 is repayable as the worker did not advise the WCB in a timely manner of the additional income. This amount is to be repaid in accordance with the WCB Overpayments Policy. This policy provides, in part, that overpayments will be pursued for recovery where the overpayment arose from the withholding of key information. The failure to advise the WCB in a timely manner about the additional income meets this requirement.