Decision #57/11 - Type: Workers Compensation
Preamble
This is an appeal from the decision of the Review Office of the Workers Compensation Board (“WCB”), which held that the worker was responsible for repaying an overpayment of wage loss benefits. The worker filed an appeal with the Appeal Commission and a file review was held on March 14, 2011 to consider the matter.Issue
Whether or not the worker is responsible for repaying the overpayment of wage loss benefits in the amount of $1356.13.Decision
That the worker is responsible for repaying the overpayment of wage loss benefits in the amount of $1356.13.Decision: Unanimous
Background
The worker was self-employed in his own home renovation business that did not employ any other workers. On August 4, 2010, while working at a private residence, the worker cut his right thumb on a table saw. He was treated at the hospital on the same day for a severe laceration. According to the Registration Form on file, on August 5, 2010, the worker contacted the WCB by phone and registered for special coverage as an independent contractor.
On August 18, 2010, the worker filed an employer injury report with the WCB for his right thumb injury noting the date of injury as August 4, 2010. The claim for compensation was approved on August 18, 2010 and full wage loss benefits were paid to the worker commencing August 5, 2010.
On September 10, 2010, a WCB claims information representative entered a note on file advising that the worker did not have any special coverage as his injury occurred on August 4, 2010 and that his coverage was not in effect until August 5, 2010. This was verified and confirmed by the WCB adjudicator, and on September 17, 2010, the worker was advised that he did not have WCB coverage at the time of his injury. As a result an overpayment of $1356.13 had been made.
On September 22, 2010, the WCB wrote to the worker advising that he was responsible for repaying the full amount of the overpayment. The worker appealed the decision to the Review Office.
On November 24, 2010, Review Office held that the worker was responsible for repaying the overpayment of wage loss benefits in the amount of $1356.13. Review Office noted in its decision that the worker did not contact the WCB to take out coverage until August 5, 2010, one day after he injured his thumb. Review Office explained that WCB coverage for self-employed workers is not mandatory and coverage is only provided upon special application, which comes into effect when the request for coverage is made. The worker was therefore not covered for his injury that occurred on August 4, 2010. As the overpayment arose in a case of an injury to a worker employed outside the group of employers who contribute to funding the WCB system, Review Office determined that the overpayment must be pursued for recovery, as failure to do so would create an unfair burden on those employers who financially support the system.
On December 10, 2010, the worker appealed the Review Office's decision to the Appeal Commission and a file review was held by the Appeal Panel on March 14, 2011.
Reasons
Pursuant to section 4 of The Workers Compensation Act (the “Act”), in those industries covered by the Act, mandatory compensation under Part 1 of the Act is provided to workers who suffer work-related injuries.
Optional coverage is provided to independent contractors under section 75(1) of the Act to those who chose to apply and purchase personal coverage. An “independent contractor” is defined in subsection 75(3) of the Act as “a self-employed person, including a partner in a partnership, who carries on or engages in any industry, and who does not employ any workers in connection with that industry”. In the case of an independent worker who chooses to purchase coverage, the Act provides in Subsection 1(f) that the definition of “worker” includes “an independent contractor who is admitted by the board as being within the scope of Part I under section 75.”
The appellant in this case clearly falls within the definition of an independent contractor as he was self-employed and did not employ any workers. It is clear from the above provisions of the Act that he did not have mandatory coverage and would only be entitled to compensation if he had applied for coverage and was admitted by the WCB for compensation under Part 1.
The Appellant does not dispute the fact that his injury occurred on August 4, 2010, and that he did not choose to apply for coverage until August 5, 2010. As noted on the WCB Registration Form, the worker’s coverage was effective as of August 5, 2010 and therefore, he was not a “worker” within the meaning of the Act and did not have coverage under Part 1 until August 5, 2010, one day following his injury. There is no provision in the Act that would allow for the purchased coverage to be applied retroactively. Accordingly, the appellant is not entitled to receipt of any compensation under Part I.
Section 109.2 of the Act provides that “where a person receives an overpayment of compensation, being an amount that the board determines is in excess of that to which the person is entitled, the board may recover the overpayment from the person…”
In the panel’s opinion, on the facts of this case, it should have been obvious to the appellant that he would not be covered for an injury that occurred prior to his choosing to purchase personal coverage. We are therefore of the view that this is a case where the full amount of the overpayment should be pursued for recovery pursuant to WCB Policy 35.40.50.
The panel concludes that the worker is responsible for repaying the overpayment of wage loss benefits in the amount of $1356.13. The appeal is denied.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
M. Thow - Presiding Officer
Signed at Winnipeg this 10th day of May, 2011