Decision #161/08 - Type: Workers Compensation
Preamble
The worker has an accepted claim with the Workers Compensation Board (WCB) for a back related injury that occurred on December 4, 1970. The worker is presently disagreeing with a decision made by primary adjudication and confirmed by Review Office, that he was overpaid benefits based on his receipt of Canada Pension Plan (CPP) disability benefits. He submitted an appeal to the Appeal Commission to consider the matter and a file review was held on November 7, 2008.Issue
Whether or not the worker has been overpaid in the amount of $7,280.48 based upon receipt of CPP disability benefits effective January 1, 2007.Decision
That the worker has been overpaid in the amount of $7,280.48 based upon receipt of CPP disability benefits effective January 1, 2007.Decision: Unanimous
Background
On December 4, 1970, the worker sustained an injury to his low back at work. The claim for compensation was accepted and various types of benefits and services were paid to the worker which included a permanent partial impairment rating and special additional compensation benefits effective November 1, 1995.
On November 1, 2007, the worker’s spouse advised the WCB that her husband was applying for CPP disability benefits in relation to his compensable back injury. On April 11, 2008, the worker advised the WCB that his application for CPP had been accepted. He later advised the WCB that his CPP benefits were $769.14 per month and that it had been paid retroactive to January 2007.
On May 26, 2008, a WCB payment specialist reviewed the file and determined that the worker had been overpaid benefits in the amount of $7,280.48 between the period January 1, 2007 and April 30, 2008 because of his receipt of CPP benefits. On May 28, 2008, the worker was notified of the amount of his overpayment. On June 5, 2008, the worker appealed the decision stating that the reduction in his special additional compensation benefit was unreasonable.
In a decision dated July 15, 2008, Review Office confirmed that the worker had been overpaid benefits based on receipt of CPP disability benefits effective January 1, 2007. Review Office stated that the receipt of CPP disability benefits by the worker in connection with his compensable back injury had altered his post accident earning capacity and must be considered when calculating his special additional compensation from January 1, 2007 onward. Review Office agreed that the worker’s special additional compensation benefits based upon the receipt of CPP disability benefits effective January 1, 2007, had been calculated correctly in accordance with the formula specified in WCB legislation and policy.
On August 8, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
This appeal is bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB’s Board of Directors.
This worker sustained a workplace injury in 1970 and he is being paid compensation benefits in accordance with section 32(1.1) of the Act as it was in 1970. The Board of Directors of the WCB made WCB Policy, 44.60.30, Special Additional Compensation (SAC) , which sets out the terms under which this benefit is calculated and paid.
Worker’s Position
The worker made a written submission to the Appeal Commission. Under the heading “Reasons Why I Should Receive All My CPP Benefits” he submitted that:
“I paid into CPP for years and also paid into WCB indirectly. WCB did not pay my CPP Premiums. Since I paid into both CPP and WCB, I should be entitled to receive benefits from both.
The reason why I am disabled is because WCB ordered me back to work to a job that involved heavy lifting TOO Soon after having back surgery. I have done everything WCB requested with NO ASSISTANCE from them to help with any rehabilitation.
I feel I have been treated UNFAIRLY by the WCB, having caused my back problems to become permanent and offering no assistance to cope with it. I live in back pain every day and have no insight of living without pain the rest of my life.
Please be advised that at NO time did WCB advise me on the amount of deduction created by my receiving the CPP Disability Benefit. Nor did WCB, reply to my request of canceling my CPP Benefits. Since WCB ARBITARILY decided the amount I was to be penalized, without any notification, I feel their ACTIONS ARE UNWARRANTED.”
The worker asked the Appeal Commission to consider allowing him to receive full CPP benefits or paying for the cost of non-prescription health products.
Analysis
The issue before the panel is whether the worker has been overpaid in the amount of $7,280.48 based upon receipt of CPP disability benefits effective January 1, 2007. Having reviewed all the facts and considered the Act and WCB policies, the panel finds that the worker has been overpaid in the amount of $7,280.48.
As noted above, the worker is in receipt of SAC benefits which are payable in accordance with WCB Policy 44.60.30, Special Additional Compensation. These benefits are paid to a worker where the monthly permanent partial disability pension paid to the worker for permanent physical loss does not adequately compensate the worker. SAC is only payable while the worker meets the entitlement criteria and will continue only until the worker’s anticipated retirement date.
Section 4 of this policy sets out the formula for the calculation of SAC benefits:
4. The Amount of SAC benefit
The SAC benefit will be calculated by:
As noted above, various other WCB policies are applied in determining the amount of the SAC benefit. The formula and policies work together as follows:
The worker’s average earnings established in the first point above are reduced by the worker’s post-accident earnings, noted in second point above:
i. The higher of actual income or income the worker is deemed capable of earning; and
ii. CPP “early” retirement benefits received subsequent to the compensable accident;
iii. Company pension payments or disability insurance benefits paid directly to the worker and attributable to the compensable injury; or,
iv. CPP disability benefits received directly by the worker as a consequence of the compensable accident (ie., if these benefits exceed the sum of i., ii., and iii. above)
The resulting sum is the worker’s loss of earning capacity, noted in the third point above.
File information shows that the worker has been in receipt of SAC benefits since November 1, 1995. These were paid on an unreduced basis as the worker had no actual earning capacity. In January 2007, the worker became eligible for and received CPP disability payments for his compensable back injury. The receipt of the CPP disability benefits for his compensable back injury has changed his post accident earning capacity which resulted in a recalculation of his SAC entitlement from January 1, 2007.
Considering the above formula and reviewing the calculations on file, the panel finds that the worker has been overpaid the sum $7,280.48 due to the receipt of a CPP disability pension for his compensable back injury. As such the worker’s appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 11th day of December, 2008