Decision #98/10 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker was responsible for an overpayment of monies that he received in error for a medication that had not been approved by the WCB. An appeal panel hearing was held on September 21, 2010, to consider the matter.

Issue

Whether or not the worker is required to repay the overpayment.

Decision

That the worker is required to repay the overpayment.

Decision: Unanimous

Background

In February 2009, the worker filed a claim with the WCB for difficulties he was experiencing with both hands and wrists that he related to his job duties as a serviceman. The claim for compensation was accepted based on the diagnosis of bilateral carpal tunnel syndrome. On April 9, 2009, a WCB adjudicator advised the worker that he could submit his prescription receipts or have his pharmacy contact the WCB regarding coverage. At the worker’s request the WCB adjudicator confirmed the claim acceptance in a letter that the worker asked to pick up that day at the WCB front counter.

In a medical report dated May 4, 2009, the treating physician reported that the worker had received injections to both wrists at the carpal tunnels in an effort to relieve the severity of his symptoms. The injections were unsuccessful and the worker was left with chronic pain and numbness affecting both hands and fingers. Treatment recommendations consisted of physiotherapy, wrist splints and a specific medication to control the worker's severe pain complaints.

On May 5, 2009, the worker attended the WCB offices and spoke with a WCB adjudicator who recorded the discussion as follows:

"I advised worker that [medication] is a drug that WCB approves in certain situations. I advised that based on the information on file, it does not appear to be appropriate in this situation. The medication he takes is between himself and his GP but WCB must be of the opinion the medication is required as a direct result of the accepted diagnosis in order to approve it. I cannot approve the [medication] at this time".

On May 12, 2009 the worker called regarding a prescription for the medication and was advised by his case manager that the WCB was not supportive of the medication given his diagnosis. On May 14, 2009, a WCB medical advisor expressed the opinion that the drug prescribed to the worker was not considered a first line option for the worker's condition. The worker was therefore advised by his case manager in a letter dated May 14, 2009 that the WCB was unable to approve coverage for the medication prescribed to him by his physician. On June 3, 2009, the worker appealed the decision and the case was forwarded to Review Office.

On June 26, 2009, the worker was advised by Review Office that it had decided to return his claim to the case manager “to obtain additional information, revisit her decision, and advise you of the outcome."

On July 2, 2009 the worker called Review Office to express his frustration that he did not yet have a decision on the issue of his medication coverage. He was advised that “further investigation is required by case management and healthcare.” On that same day, a message was left on the worker’s voice mail to advise that Case Management would try to expedite the information gathering phase and then provide a formal decision in the matter, and the worker was advised of the next steps. On July 8, 2009, a WCB Case Management Representative ("CMR") called the worker to obtain further information in regard to his claim. The worker answered several questions that were asked of him but then said he had “had enough” and hung up. The CMR then wrote the worker on the same date to ask questions related to his past and present prescription medication regime. In that same letter it was noted that upon return of the letter his claim would be reviewed for coverage of the medication and he would be advised of the decision. On July 29, 2009, the WCB received from the worker the July 8 letter on which the worker had recorded his responses on the issues of his past useage of the medication and also his current prescription medicine regime.

The worker received a cheque on July 28, 2009 for $1,128.86 accompanied by a letter indicating it was reimbursement for the medication.

On July 29, 2009, a WCB medical aid assessor noted on the worker’s file that the worker had been paid for medication prescriptions submitted in May and June 2009, but that the payment should not have been made as the medication was under review. She called the worker on July 29, 2009 to advise of the error and he informed her that he had already cashed the cheque that day. The worker was advised that the WCB would have to recover the overpayment.

On August 18, 2009, the worker submitted additional receipts for the medication filled in July and August 2009. He was advised on August 18, 2009 by a WCB case manager that the WCB was unable to reimburse him for his medication receipts as it remained the position of the WCB that the medication was not appropriate based on the accepted diagnosis. The worker was advised that an error had been made when the WCB's medical aid department had reimbursed him for the medication and that he would be responsible for reimbursing the costs to the WCB.

On August 19, 2009, the WCB confirmed in writing that a medical advisor from the WCB's pain management unit had reviewed the worker’s file and was unable to support the use of the medication prescribed in relation to his claim.

On October 2, 2009, the worker was advised that the overpayment of $1,128.86 was due by October 19, 2009. On October 22, 2009, the worker appealed the decision to Review Office.

On November 23, 2009, Review Office confirmed the case manager's decision that the medication prescribed to the worker should not be covered by the WCB. It determined that the worker was overpaid due to an administrative error of the WCB. Review Office concluded however that under WCB Policy 35.40.50, Overpayment of Benefits the overpayment must be repaid as it was so obvious that the worker should have recognized it and reported it to the WCB.

On January 6, 2010, a worker advisor submitted to Review Office that the overpayment should be written off based on the sequence of events noted on file between June 3, 2009 and August 18, 2009. The worker advisor agreed that an administrative error created the overpayment but disagreed that the worker should have recognized the error.

In a decision dated January 21, 2010, Review Office confirmed its earlier decision that the worker was required to repay the overpayment. Review Office noted that the worker was advised verbally and in writing on May 12 and May 14 that the WCB would not cover the prescribed medication, and on June 26 that the WCB was revisiting the case manager's decision. Review Office concluded therefore that the worker should have expected that any change in position would be made at least by letter, and questioned why he had received the payment without first being advised of any change in the WCB’s position. On February 1, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

The worker appeared with his worker advisor who made a submission on his behalf. Both the worker and his advisor responded to questions from the panel.

At issue on this appeal is whether an application of WCB Policy 35.40.50 (“the Policy”) requires that the worker repay the overpayment to the WCB. We find upon a review of the Policy and the evidence before us that the worker is required to repay the overpayment made by the WCB. Part C, Paragraph 3 of the Policy provides that:

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 and obvious that the worker should have recognized it and reported it to the WCB; or

. . .

(v) recovery of the overpayment, in whole or in part, would create financial hardship for the worker and/or the worker’s dependents.

There is no doubt that the overpayment resulted from an administrative error by the WCB. The question is whether the WCB’s error was so material and obvious that the worker should have recognized it and reported it to the WCB.

The worker’s position before this panel was that the receipt of the cheque was not an error that was so material and obvious that he ought to have notified the WCB. He conceded that recovery of the overpayment would not create a financial hardship.

Without doubt the worker was well aware throughout the months of June and July, 2010 that his entitlement to reimbursement for the medication was a live issue at the WCB. The worker was informed by the WCB very early on in his claim that the medication for which he sought reimbursement was not approved for his condition. He was advised of that fact on May 5 and 12, 2010 in conversations with his case worker. Coverage for the medication was formally denied in a letter to the worker dated May 14, 2010 in which he was advised of the result after “a complete review of your file . . . [and] in consultation with the WCB healthcare department”. Following the worker’s request that Review Office reconsider the decision, the worker was advised on June 26, 2009 that his case manager would “obtain additional information, revisit her decision, and advise you of the outcome. ”

In his evidence the worker acknowledged that when he received the cheque he had not yet been notified by his case manager as to the outcome of her review. Nonetheless he testified that he believed that having received the cheque, a decision had been made by the WCB. We think the worker’s evidence, in the face of an almost immediate retraction by the WCB, must be viewed through the lens of his troubled relationship with the WCB in respect of this claim. When he had not yet received a decision, the worker contacted the WCB on July 2, 2010 to express his frustration. His refusal to cooperate in the WCB’s review by terminating the call with the CMR on July 8, 2010 inevitably prolonged the review process. Indeed, the WCB did not even have his response to its inquiries which were part of the review process until July 29, 2010, the date on which the worker was both advised of the administrative error and that he testified he cashed the cheque.

That troubled relationship is also apparent in the worker's refusal to return the money to WCB, even though the WCB's retraction was made within minutes or hours after the worker had cashed the cheque. We note also that the worker was not new to the WCB process, as his history discloses five prior claims for compensation. He was sufficiently familiar with the process that he requested written confirmation that his claim had been accepted, and advised that he would personally attend at the WCB office to obtain that letter. We find that he ought to have been aware that a decision letter would be issued in respect of the very matter that he had asked the WCB to reconsider.

In all of the circumstances, we find on a balance of probabilities that the receipt of the cheque in the absence of any communication of a decision from the WCB ought to have been recognized by the worker as a material and obvious error so as to trigger a report by him to the WCB. Given that he knew the WCB’s willingness to approve the medication was the subject of an ongoing review, that he had only just provided to the WCB the information that it had requested from him, and in the absence of a decision or notification from the WCB as to the result of its review, the Policy dictates that the overpayment be pursued for recovery.

We therefore dismiss the worker’s appeal.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 29th day of October, 2010

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