Decision #21/16 - Type: Workers Compensation
Preamble
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that he was overpaid benefits and that he was required to repay the overpayment. A file review was held on January 21, 2016 to consider the worker's appeal.
Issue
Whether or not the worker has been overpaid benefits; and
Whether or not the worker is required to repay the overpayment.
Decision
That the worker has been overpaid benefits; and
That the worker is required to repay the overpayment.
Decision: Unanimous
Background
On August 26, 1996, the worker suffered an injury to his left shoulder and a scalp contusion following an assault at work. His claim for compensation was accepted by the WCB and various types of benefits were paid to the worker. In February 2012, the WCB established the worker's earning capacity at $718.70 per week based on National Occupational Classification 7411, Truck Driver. In August 2013, his post accident earning capacity was indexed to $754.67 effective September 1, 2013.
On August 19, 2014, a WCB case manager wrote the worker to request up dated information on his employment status and income. As a response from the worker had not been received, the worker was advised by letter that his post accident earning capacity would be increased effective September 1, 2014 to $771.45 per week.
In 2015, the WCB reviewed the worker's 2014 income tax return and found that the worker was earning an income higher than the established earning capacity on file. By letter dated June 3, 2015, it was confirmed to the worker that he was overpaid WCB benefits in the amount of $10,251.64 for the period January 1, 2014 to December 31, 2014 and that he was responsible for repaying the full amount of the overpayment. The worker disagreed and an appeal was filed with Review Office.
On June 9, 2015, Review Office reviewed the overpayment calculations for 2014 and agreed that the worker was overpaid from January 1 to December 31, 2014 in the amount of $10,251.64. This was based on the findings that the worker's actual earnings in 2014 were higher than the established earning capacity used on file to calculate his partial wage loss benefits.
Review Office also agreed that the worker was required to repay the overpayment. Review Office indicated that it did not find the overpayment resulted from an administrative error by the WCB. The long-term wage loss review for 2014 was conducted within the time line and parameters in accordance with the policy. It did not find supporting evidence that the worker had notified the WCB at any time in 2014 of the changes in his income level. The worker disagreed with Review Office's decision and an appeal was filed with the Appeal Commission.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's Board of Directors.
The worker has an accepted claim for an accident occurring on August 26, 1996 when he sustained a left shoulder injury and scalp contusion. The worker appealed the following issues to the Appeal Commission:
Issue 1. Whether the worker has been overpaid benefits
Subsection 109.2 of the Act provides:
Recovery of overpayments
109.2 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, or from the executors or administrators of the person, as a debt due to the board.
Issue 2. Whether the worker must repay the overpayment.
WCB Board Policy 35.40.50 (the “Overpayments Policy”) deals with recovery of overpayments of benefits. The Overpayments Policy sets out the principles established by the WCB Board of Directors to guide the WCB in its recovery of overpayments.
Worker's Position
In support of his appeal, the worker provided copies of correspondence including correspondence between himself and the WCB, facsimile transmittal forms from the worker to the WCB, and income and salary information from the worker's employers.
In his cover letter the worker noted:
In August 28 2013 there was in fact a letter from [case manager] in regards to my post accident earnings. Prior to this my payslips were faxed in as they have been since 2012 and also a Indexation information letter was faxed back to [case manager] on August 3, 2013, along with another couple timesheets from [employer].
Now in August 2014 I cannot find a "indexation information" letter sent or filed back but I can find a "other Income Information" form which was sent to me and faxed back to WCB Completed on March 6, 2014.
[Case manager] states that a letter was sent because she tried to reach me by telephone. In August 2013 this was done and I have the letter but I do not have one for August 2014. I am currently ordering my phone records for my home phone as I have little trust this was actually done. I have researched my cell number and no call was made by [case manager] from June 2014 -October 2014 requesting any form of income from me.
It seems that there is quite the mix up with [case manager] and her dates, letters that have been sent, faxes going missing or claimed to not be received and phone calls claiming that they were made by her to me.
In light of this new information, it appears I the worker actually have been doing my part in ensuring a overpayment would not happen, it appears that your end is a little mixed up.
Analysis
1. Whether the worker has been overpaid benefits.
In calculating the amount of the earnings, the WCB relies upon information provided by the worker. As it had most recently in 2012 and 2013, the WCB wrote to the worker on February 28, 2014. The letter stated in part:
This letter is being sent to confirm any other income you may be receiving.
The amount the Workers Compensation Board pays you can be affected by other income you receive. To make sure the amount we are paying you is correct, it is important that we know about any other money you are receiving. Examples of other income includes overtime, wage increases, bonuses, second jobs, collateral benefits from other sources, etc. (as outlined in the attached sheet.)...
You can help us prevent overpayments and the inconvenience they can cause by telling us of any change in your income. If we pay more than you are entitled to receive, we have to collect it back from you.
The worker argues that he did not receive this letter or any related communications from the WCB in 2014. The panel notes that the WCB file contains a copy of the letter.
As the worker did not complete and return the form, the WCB continued to issue wage loss benefits without knowing that the worker was in receipt of an increased income. The panel notes that the worker's employment income in 2013 as recorded on his 2013 Income Tax Return was $35,514.00 while the sum recorded on his 2014 Income Tax Return was $69,242.00.
The panel considered the amount of wage loss benefits paid to the worker and the income earned by the worker. The panel noted that calculations made by the WCB found that the worker had been overpaid wage loss benefits in the amount of $10,591.08. The worker's income was $69,242.00. The wage loss overpayment is calculated as follows:
2014 T4 earnings = $69,242.00
Less line 229 = $8,703.00
= $60,539.00/52 weeks or $1,164.21 per week
Total partial wage loss due January 1, 2014 to December 31, 2014 = $339.44
less partial wage loss paid January 1, 2014 to December 31, 2014 = $10,591.64
Overpayment = $10,251.64
The panel reviewed the calculation of the worker's partial wage loss and the overpayment, and finds that the calculation is correct and in compliance with WCB policy.
The panel finds that the worker received an overpayment of compensation, being an amount that the WCB determines is in excess of that to which the worker is entitled.
Given that the worker was overpaid, the worker's appeal of this issue is dismissed.
2. Whether the worker is required to repay the overpayment.
The recovery of overpayments from workers is dealt with under Policy 35.40.50, Overpayments of Benefits.
The policy provides that all overpayments, exceeding $5.00, will be recovered subject to the following:
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 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 or the worker's dependents; 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.
The panel has reviewed the criteria and finds that the circumstances of this appeal do not fall into the exceptions noted above. The panel finds that the overpayment resulted from the worker's failure to advise the WCB of his increased earnings.
The panel notes the worker's position that he did not receive the usual correspondence from the WCB in 2014 due to a "mix up" by the case manager and WCB. The panel is not able to find that there was a "mix up" at the WCB as claimed by the worker. The panel notes that there is a copy of the case managers February 28, 2014 letter addressed to the worker on the claim file.
The panel also finds that even if there was a "mix up" at the WCB which resulted in an administrative error of not forwarding the forms for completion, the amount of the overpayment was so significant, the worker should have recognized it and reported it to the WCB. The panel notes that the worker's employment income in 2013 as recorded on his 2013 Income Tax Return was $35,514.00 while the sum recorded on his 2014 Income Tax Return was $69,242.00. The worker's employment income was almost double that of the previous year. The worker was also very familiar with the WCB's processes regarding the annual calculation and review of his wage loss calculations, given the length of his claim. The panel finds that it should have been obvious to the worker that his WCB wage loss benefits should have been reduced.
The worker is required to repay the overpayment of wage loss benefits.
The worker's appeal of this issue is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 27th day of January, 2016