The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a decision made by the Review Office of the Workers Compensation Board (“WCB”) which determined that the worker was overpaid benefits as a result of incorrect information from the employer and that she was required to repay the overpayment. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A review was held on August 14, 2014 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

On November 7, 2013, in the course of her duties as a cashier, the worker suffered a compensable injury causing symptoms in her right shoulder and neck.

The worker received an overpayment in the amount of $1,804.92 as a result of the employer providing incorrect wage information. A letter from the WCB was sent on February 27, 2014 advising the worker of the total amount of the overpayment. In addition, this letter advised that the overpayment occurred because incorrect wage information was provided by the employer and that the WCB was the opinion of that the worker should have noted the discrepancy between her regular/pre-accident income versus her benefits received.

The worker was advised that she had until March 27, 2014 to file an appeal or else the collection process would then begin. The worker advised on March 14, 2014 that she would be appealing the overpayment determination.

The worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

On August 14, 2014, the appeal panel met to discuss the case.

Reasons

Applicable Legislation and Policy

The issue before the panel was whether the worker is required to repay the overpayment of compensation benefits. Subsection 109.2 of The Workers Compensation Act (the “Act”) provides that where a worker receives an overpayment of compensation, the Board may recover the overpayment from the worker. In accordance with the Act, the WCB Board of Directors established WCB Policy 35.40.50, Overpayment of Benefits (the “Policy”) which sets out principles with respect to recovery of overpayments to workers. Pursuant to subsection 60.8(6) of the Act, the Appeal Commission is bound by the policies of the Board of Directors.

Section C.3. of the Policy provides that all overpayments will be pursued for recovery. It also provides a list of circumstances in which the recovery will not be pursued. Subsection (ii.) provides that overpayment will not be pursued if it resulted from either an administrative error by the WCB, or receipt of incorrect information from an employer. However, 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.

In this case, Review Office applied the above noted provisions of the Policy and determined that the worker was overpaid as a result of incorrect information from her employer and the overpayment should be recovered. Review Office found that the gross weekly earnings used to calculate the worker's wage loss benefits were significantly higher than her regular earnings and she should have recognized it and reported this to the WCB.

Worker’s Position

Further to the worker’s confirmation that she wished to appeal the Review Office decision, no additional information was provided with respect to her appeal.

Analysis

This issue in this appeal revolves around the question of whether the amount overpaid by the WCB was so material or obvious that the worker should have reported it to the WCB. The panel notes that Appendix A to the policy provides guidance to decision makers who are dealing with overpayments that result from incorrect information from an employer. In brief, it states that errors, incorrect information or new information that the worker should have recognized and reported will normally require judgments about materiality, the worker's understanding of WCB rules and policies, and the worker’s ability to communicate effectively with her employer and the WCB.

The amount of the overpayment in this case was significant. Prior to the compensable injury, the worker’s average gross weekly wages were $239.13. The WCB, on account of incorrect information from the employer, calculated the worker’s gross weekly earnings at $542.70. The sum is significantly higher than what the worker had previously received.

Here, the panel finds that the evidence does not provide a reasonable basis for the worker to have expected that her benefits would be roughly double her earnings. The panel also finds that the payments to the worker were so significantly greater than her earnings at the time of the compensable injury, that the worker should have realized that an error had been made and sought clarification of the calculation. The worker did not contact the WCB about the benefit calculation and resulting overpayments even though overpayments continued for several weeks.

Accordingly, the panel finds that the worker is required to repay the overpayment and her appeal is dismissed.

In this appeal, the panel is only deciding whether the worker is required to repay the overpayment of benefits that she received. The panel is not addressing the issue of the worker’s financial capacity to make repayment. This aspect of the overpayment has not been considered or adjudicated, therefore it remains open to the worker to raise.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 10th day of October, 2014