Decision #123/11 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") that she was responsible for an overpayment made in the amount of $66.34. The worker contended that the overpayment should not be pursued for recovery as the overpayment resulted from an administrative error by the WCB. A file review was held on July 18, 2011 at the Appeal Commission to consider the matter.

Issue

Whether or not the worker is responsible for the overpayment in the amount of $66.34.

Decision

That the worker is responsible for the overpayment in the amount of $66.34.

Decision: Unanimous

Background

The worker reported to the WCB that she injured both knees on July 16, 2010 during the course of her employment as a cleaner when she slipped on papers while carrying a box of books. The claim for compensation was accepted and benefits were paid to the worker. The diagnosis was bilateral contusion to the knees.

In a memorandum to file dated September 17, 2010, a WCB adjudicator noted that the accident employer had an offer of modified duties for the worker which involved sitting at a desk and cleaning. The adjudicator stated that she called the worker and the worker agreed that she could handle the duties. The worker indicated that she had a follow up appointment with her doctor on September 21, 2010 and she would be available for the modified duties after that date.

Under claim notes dated September 21, 2010, the WCB adjudicator noted that the worker left a message on her voice mail indicating that she was seeing her doctor that afternoon. The worker said she was supposed to return to work tomorrow but would see what the doctor had to say. The adjudicator noted that she returned the worker's phone call that day and left her a voice message. The adjudicator advised the worker that she would take the doctor's opinion into account however it was the WCB's position that the worker was capable of returning to modified duties.

In a memorandum to file dated September 22, 2010, the WCB adjudicator noted that she spoke with the worker in regard to physiotherapy treatment. The worker advised that she did not go to work that day as the WCB had already paid her. The adjudicator advised the worker that she was overpaid incidentally as her payment was issued prior to her return to work date being confirmed. The adjudicator advised the worker that the pay she received for September 22, 2010 was being calculated as an overpayment and the worker would have to repay this to the WCB which amounted to $66.34. The worker advised the adjudicator that her knees were still really sore.

In a further memorandum to file dated September 22, 2010, the adjudicator recorded that the employer called to advise that the worker did not show up for work today. The worker said her legs were too inflamed to work and that the WCB told her she did not have to come in because they had already paid her for the day.

On September 23, 2010, a letter was sent to the worker confirming that the total amount of the overpayment was $66.34. The adjudicator stated "This overpayment occurred because your September 20 wage loss cheque paid you up to September 22 inclusive. This cheque was issued prior to your employer offering your modified duties effective September 22."

In a submission to the WCB dated October 29, 2010, a worker advisor acting on the worker's behalf outlined the position that the overpayment of $66.34 should be written-off or not pursued for recovery. In a response dated December 22, 2010, the WCB adjudicator confirmed that there would be no change to the decision of September 22, 2010. The adjudicator stated in part: "…it is my opinion that payment of wage loss benefits for September 22 inclusive was an administrative error on the part of the WCB however in this instance, the overpayment will not be written off due to the fact that this error was obvious to the worker."

On January 18, 2011, the worker advisor appealed the December 22, 2010 decision to Review Office. The worker advisor outlined the position that the overpayment could not have been obvious to the worker and that the worker should not be required to repay the amount of $66.34. The worker advisor referred to the following evidence in support of their position:

  • The September 22, 2010 memorandum by the adjudicator where it was stated "she was overpaid incidentally as her payment was issued prior to her RTW date being confirmed". The worker advisor indicated that since the payment was issued prior to the confirmation of a return to work date, then the overpayment could not have been obvious to the worker.

  • There was an onus on the WCB to prevent overpayments. The worker advisor referred to the "Administration Guidelines" of WCB policy 35.40.50 entitled Overpayments of Benefits. She stated "Since the Administrative Guidelines identify that "reasonable measures to prevent overpayment" is a WCB responsibility, this overpayment for September 22, 2010 would have been avoided if the WCB directed a return to work plan to start on September 23, 2010. This overpayment was caused by the Workers Compensation Board agreeing to a return to work date of September 22, 2010 which was an administrative error."

On February 16, 2011, Review Office determined that the worker was responsible for the overpayment of $66.34. Review Office indicated that the worker was well aware she was to return to work on September 22, 2010. When the worker realized she had been paid for September 22 she did not contact the WCB to report it or to find out if she was still expected to return to work on September 22, 2010. She chose rather to delay her return to work until September 23, 2010. It was concluded by Review Office that the overpayment should have been recognized by the worker and therefore the overpayment should not be written off. On March 29, 2011, the worker advisor appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the WCA). Subsection 109.2 of the WCA provides that where a worker receives an overpayment of compensation, the WCB may recover the overpayment as a debt due to the board. The Board of Directors made WCB Policy 35.40.50, Overpayments of Benefits, which sets out the principles established to guide the WCB in recovery of overpayments to workers.

WCB Policy 35.40.50, Overpayments of Benefits deals with situations where the WCB may and will seek recovery of overpayments. Part C, 3 of that policy provides that all overpayments 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

(iii.) new information relevant to entitlement was known to the worker and was not provided to the WCB, but it resulted in an overpayment of less than $50; or

(iv.) the amount receivable is not cost-effective to pursue; or

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

(vi.) the worker has died, unless it is clear that the estate has sufficient funds available to repay the overpayment; or

(vii.) the overpayment occurred more than three years prior to its discovery by the WCB.”

Worker's Position

The worker was represented by a worker advisor who provided a written submission.

The worker advisor noted that the Review Office acknowledged that there was an administrative error on the part of the WCB as the WCB paid the worker for September 22, 2010 even though she was scheduled to return to work on September 22, 2010. The worker advisor also noted that the worker did recognize she was paid to September 22, 2010 and she reported it to the case manager. The worker advisor submitted that the provisions of section C, paragraph 3(ii) were met and that the overpayment should have been written-off. The worker advisor submitted that the worker recognized she had been paid for September 22, 2010 so did not go to work on that day. She did this in an attempt to mitigate the consequences of the overpayment so that a collateral benefit would not occur. The worker advisor noted that modified duties were offered before the cheque was issued.

The worker advisor further submitted that the WCB failed to take reasonable measures to prevent the overpayment when the case manager already knew that the worker was paid to September 22, 2010. She noted that by not changing the return to work date to September 23, 2010, reasonable measures were not taken. She submitted that by directing the return to work on a day that the worker was already paid goes against the key concept regarding duplication of benefits.

In closing the worker advisor wrote that the overpayment was due to an administrative error by WCB through no fault of the worker and that the worker attempted to mitigate the consequence of the duplication of benefits. Accordingly the overpayment ought to be written off.

Employer's Position

The employer did not participate in the appeal.

Analysis

The Overpayments of Benefits Policy sets out limited circumstances where overpayments will not be pursued. The worker argued that the overpayment was not recoverable as it fell within Part C, 3 (ii) of the policy. This section provides that overpayments resulting from an administrative error by the WCB are not pursued for recovery.

We find that the circumstances of this overpayment do not fall within the limited exception provided by subsection 3 (ii) and that the worker is responsible to repay the overpayment on her claim.

In making our decision, the panel relied upon the following:


  • The employer contacted the WCB and advised they could provide modified duties for the worker.
  • The worker's physician's report of September 21, 2010 indicated that the worker could work at modified duties on September 22, 2010.
  • The case manager contacted the worker and advised that she was to return to work on September 22, 2010.
  • The case manager called the worker's residence on September 22 to leave a message for the worker, and found the worker was home. The worker advised the case manager that she did not go to work as she was paid in her last cheque for September 22, 2010.
  • The worker recognized that she was overpaid but did not report the overpayment to the WCB, but rather chose not to return to work on September 22, 2010.

We find there was an overpayment of $66.34. We find that the overpayment resulted from an administrative error by the WCB and that the error was so obvious that the worker should recognize it and report it to the WCB. Unfortunately, the worker did not contact the WCB to determine whether she should work on September 22, 2010, but rather chose not to work on this date, thereby getting paid for a day for which she was not eligible for compensation. By receiving payment for September 22, 2010, the worker received an amount in excess of that to which she was entitled.

The panel finds that the worker's action in failing to return to work is not consistent with the purpose of section C, paragraph 3(ii). This section is not intended to allow the payment of benefits to workers who chose not to work when suitable work is available.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Marsden, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 1st day of September, 2011

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