The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision that he was required to reimburse the Workers Compensation Board ("WCB") for the overpayment of benefits that he was paid on his compensation claim. A file review was held on March 14, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is required to reimburse the overpayment of benefits to the WCB.

Decision

That the worker is required to reimburse the overpayment of benefits to the WCB.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a left elbow and forearm injury that occurred in the workplace on February 28, 1996. The worker has received various benefits from the WCB which included partial long term wage loss benefits.

On June 19, 2015, a WCB case manager advised the worker that she discovered an overpayment on his claim based on a review of his 2014 income tax information which indicated that his actual earnings in 2014 were higher than the earning capacity noted on the claim file. The total amount of the overpayment was $9,879.67. The case manager stated:

You had been submitting pay stubs but it was difficult to determine your true earnings as your income varied and it was noted as seasonal work. When we reviewed your 2014 income tax, it was also noted that you had Employment Insurance earnings in 2014 which also brought your 2014 total gross earnings up. Your total gross earnings for 2014 were $40360/52 weeks = $776.15 gross weekly.

You are responsible for repaying the full amount of the overpayment..."

On July 15, 2015, the worker appealed the case manager's decision to Review Office.

In a decision dated September 10, 2015, Review Office confirmed that the worker was responsible for the repayment of the overpayment of benefits. Review Office noted that when the 2014 income tax information was obtained and reviewed by the WCB case manager, it showed that additional income had not been calculated in. It was also established that the worker's 2014 actual earnings were $40,360.00 which was confirmed in a payment assessor memo dated June 12, 2015. When this was divided into the indexation year of 52 weeks, the weekly gross earnings was $776.15. The worker had a previously set earning capacity of $418.00 per week for 2014.

Review Office found that the worker was cognizant of the WCB's overall review process which adjusted his earning capacity to reflect his actual earnings at that time. This process and his conversations with the case manager are a matter of record within the file evidence. Review Office concluded that the worker's actual earning capacity and long term wage loss benefits had been correctly calculated. It found that the overpayment of benefits as established by the WCB had been correctly calculated and applied. On September 29, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

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 established WCB Policy 35.40.50, Overpayments of Benefits ("the Policy"), which sets out the principles to guide the WCB in recovery of overpayments from workers. This policy deals with situations where the WCB may and will seek recovery of overpayments.

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.

The overpayment in this case arose from the payment of wage loss benefits.

Worker's Position

The worker's Appeal of Claims Decision form which was received at the Appeal Commission on October 5, 2015 indicates:

I asked why I was not reimbursed for training I paid for myself in order to be eligible to gain employment as truck driver. This question was not addressed. Hours I work to earn my wages are extreme, lots of O.T. seasonal work. Yearly average isn't right as O.T. earnings are taxed at a higher rate thereby meaning that is not similar to regular hours. Stated in Decision by Review office that I didn't communicate earnings properly. Not true, I always submit my paystubs and inform where and when I am working. Was I supposed to manage my own claim. There is no better precise way to declare earnings than paystub submission.

The worker provided a further written submission dated February 3, 2016. He submitted, in part, that:

Review Board decision said I had not done enough to communicate earnings. My submission of paystubs is the only way to communicate earnings as they were fluctuating due to never knowing what my work hours on a daily or weekly basis were going to be. My case manager even told me not to submit my paystubs…

The worker provide a written response to information forwarded to him on March 29, 2016, regarding the calculation of the overpayment.

Employer's Position

The employer did not participate in the appeal.

Analysis

In reviewing this appeal, the panel noted a potential error in the WCB's calculation of the overpayment, dealing with the worker's EI reimbursement. The panel asked the WCB to review the calculation prior to its deliberations on the issue of repayment. The WCB revised the calculation and provided the panel with a memorandum outlining the change. The panel provided the worker with the WCB memos dealing with the calculations and details of the revised overpayment and obtained the worker's comments on the revised sum.

Upon receipt of the worker's response the panel reviewed the calculations and found that the amount of the overpayment is $8,982.87 and that this sum has been correctly calculated.

The issue in front of the panel is whether the worker is required to reimburse the overpayment of benefits that he received. As noted in the background, the Policy sets out limited circumstances where overpayments will not be pursued. For the worker's appeal to be successful, the panel must find that the circumstances of his case fall within the limited circumstances where an overpayment is not recoverable.

The panel finds that the circumstances of this overpayment do not fall within the limited exception provided under subsection 3 (ii) of the Policy, and therefore finds that the worker is responsible to repay the overpayment on his claim.

The worker submitted that he informed the WCB of the amount of his earnings by sending copies of his work stubs to the WCB. He said that this was the only way he could inform the WCB, as his earning were variable.

The panel notes that the worker's earnings, calculated at $743.21 weekly, were significantly higher than his previously determined earning capacity of $418.00. The worker knew or should have known that he was earning significantly more income than expected. The panel finds that information was so material or obvious that the worker should have recognized it and reported it to the WCB. The act of sending in the paystubs was not sufficient notice in this case.

The worker's appeal is dismissed, except with an adjustment of the overpayment to $8,982.87 as noted above.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of May, 2016