The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker's widow is appealing the decision made by the Workers Compensation Board ("WCB") that she was overpaid benefits and that the benefits have to be repaid. A file review was held on April 15, 2014 to consider the matter.

Issue

Whether or not the overpayment of $393.02 is to be repaid to the WCB.

Decision

That the amount of $393.02 is not to be repaid to the WCB.

Decision: Unanimous

Background

On April 9, 1997, the worker sustained fatal injuries in a work-related accident. The worker was survived by a spouse and three children. The children subsequently received monthly benefits from the WCB which were to be paid until the children obtained their first post secondary education degree. In June 2009, the deceased's daughter turned 18 years old and soon afterwards started to attend university classes.

On August 16, 2013, the WCB wrote the worker's widow to advise that she had been overpaid benefits in the amount of $393.02. The letter stated:

This overpayment occurred because (daughter) completed the requirements for her first degree the end of June (she wrote her final exam the end of June). I have attached a sheet outlining the calculation of this overpayment for your review...You are responsible for repaying the full amount of the overpayment; therefore, the overpayment has now been referred to our collections unit regarding repayment.

On September 8, 2013, the worker's widow appealed the August 16, 2013 decision to Review Office.

Prior to considering the appeal, Review Office contacted the university and it was confirmed that the worker's daughter had fulfilled the requirements of her first degree and that her courses ended on June 28, 2013.

In a decision dated October 4, 2013, Review Office determined that there was no entitlement to dependent child benefits of $393.02 for July 2013 and that the overpayment of $393.02 had to be repaid. Review Office referred to certain subsections of The Workers Compensation Act (the "Act") in place at the time of the accident and stated that there was no longer entitlement to a monthly payment for the dependent child beyond June 2013. It noted that by June 2013, the daughter had finished her studies for her first university degree and as such, an overpayment of $393.02 existed. In accordance with WCB Policy 35.40.50, the overpayment was required to be repaid.

The worker's widow provided Review Office with a letter from the university dated October 2, 2013 which stated, in part:

Your transcript will reflect that you have graduated only after your official graduation date. Your official graduation date is the opening date of Fall Convocation...

On December 17, 2013, Review Office stated that no change would be made to his previous decision. Review Office indicated that the issuing of dependent child benefits by the WCB was to support the costs associated with attending school and as the daughter had completed her studies prior to July 2013, there was no basis to continue the payment of her benefits.

Review Office also opined that the daughter fulfilled her requirements for her degree before July 2013. It considered her to have obtained her degree by that point in time and that the date on which the formal papers associated with the degree are handed out were not relevant.

On February 27, 2014, the worker's widow 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 Act, regulations and policies of the Board of Directors. As the deceased worker’s claim was established in 1997, any entitlement to benefits under this claim are assessed under the Act as it existed at that time (the “1997 Act”).

Under subsection 28(1) of the 1997 Act, where a deceased worker is survived by dependants, compensation is payable.

Subsection 29(1) provides:

29(1) Compensation is payable to a dependent of a deceased worker as follows:
...

(c) in respect of each child of the worker who is 18 years of age and older, a monthly payment of $250., where the child

(i) is applying himself or herself, to the satisfaction of the board, in a course of study that is acceptable to the board, and

(ii) does not have a university degree and has not completed a course in technical or vocational training;

The applicant’s position:

The applicant is the surviving spouse of the worker. In the Appeal of Claims Decision form, the reason why the applicant believed that the WCB's decision should be overturned was stated as follows: "University of Manitoba registrar's office stated my daughter's transcript will reflect that she has graduated only after her official graduation date." It was submitted that as of July 2013, the daughter did not yet obtain her university degree, as was required under subsection 29(1)(c)(ii) of the Act. It was further submitted that the daughter did not know with certainty that she fulfilled her requirements for her first degree because she did not have formal papers to confirm that she had met all requirements needed to graduate.

Analysis:

The issue before the panel is whether or not the overpayment of $393.02 is to be repaid to the WCB. In order for the appeal to be successful, the panel must find that either an overpayment does not exist or that there is some authority in the Act or WCB policy which provides that the overpayment should not be pursued for recovery. On a balance of probabilities, the panel finds that an overpayment does not exist, and therefore the amount of $393.02 is not to be repaid to the WCB.

In the panel's opinion, the worker's daughter remained entitled to receive the dependent's monthly compensation payment for the month of July 2013 as she was still applying herself in a course of study. While we do not accept that a dependent is entitled to receive the monthly benefit until such time that the formal graduation papers are handed out, we do find that there is entitlement to support until such time that the dependent receives confirmation that he or she has

successfully completed all of the studies required to obtain the university degree. On the facts of this case, a claim note dated September 20, 2013 indicates that the daughter received an email from the University in mid-July 2013 which confirmed that she passed the June exam. The panel finds that until the daughter received the email, she would not have known whether or not she would have to continue to apply herself to a course of study during the next session. It is the panel's understanding that dependants attending university continue to receive monthly benefits from the WCB during the summer months between years 1 and 2, and years 2 and 3, even though they are not attending classes during this time. The panel feels that the period between the writing of the exams and receiving confirmation of marks is of a similar nature. Until the student receives notice of a passing grade, the student does not know if they will be returning to school in the fall, or moving on to the next stage of their lives. They are entitled to continue to receive support until confirmation of successful completion is received.

For the foregoing reasons, the panel finds that an overpayment for July 2013 does not exist. It therefore follows that the amount of $393.02 is not to be repaid to the WCB. The applicant's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of June, 2014