The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was required to repay an overpayment with respect to his compensation claim. A file review was held on June 6, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is required to repay the $3881.78 overpayment.

Decision

That the worker is required to repay the $3881.78 overpayment.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a right wrist injury that occurred in October 2009 during the course of his employment as a machine operator.

In a memorandum to file dated February 12, 2015, a WCB payment specialist noted that she called the worker and advised him that the Shelter Rebate payment processed on February 10, 2015 had been sent to him in error and that he was required to reimburse the WCB with the whole amount ($3,881.78). The worker advised the payment specialist that he already used the adjustment payment to pay off a credit card. The payment specialist noted that the WCB's Shelter Rebate program was to have deleted this payment from the system but somehow it did not function as expected.

On February 13, 2015, a WCB case manager contacted the worker to review the overpayment and the discussion he had with the payment specialist on February 12, 2015. He noted that the worker "understood that this was an overpayment." On February 13, 2015, the case manager sent the worker a letter to confirm that the total amount of the overpayment was $3,881.78 and that the overpayment occurred because of an administrative error, in which the rebate was issued incorrectly. It was confirmed to the worker that he was responsible to repay the full amount of the overpayment back to the WCB.

On July 20, 2015, collections sent the worker a letter asking him to pay back the overpayment by August 17, 2015.

On November 17, 2015, a worker advisor acting on the worker's behalf appealed the July 20, 2015 decision to Review Office. The worker advisor submitted that the overpayment should be written off as supported by WCB policy 35.40.50, Overpayment of Benefits.

On December 18, 2015, Review Office confirmed that the worker was required to repay the overpayment of $3,881.78. Review Office stated, in part, that overpayments caused by administrative errors are not collected except when the overpayment is so material or obvious the worker would have known about it. It found that the overpayment was obvious to the worker and it therefore must be repaid. Review Office stated that it did not agree with the worker's position that he felt the cheque was for "an adjustment." On December 29, 2015, the worker advisor 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 "Act"), regulations and policies of the WCB's Board of Directors.

The issue before the panel was whether the worker is required to repay the overpayment of compensation benefits. Subsection 109.2 of 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.

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, the worker was overpaid as a result of an administrative error by the WCB.

Worker’s Position

The worker was represented by a worker advisor. The worker's Appeal of Claims Decision form indicates that:

The WCB agreed that the overpayment was an administrative error and the overpayment was not an obvious error by the worker. Therefore, the overpayment should be written off as per Board Policy #35.40.50 "Overpayments".

In a written submission to the Review Office the worker advisor advised that:

It is [worker's] position that he was of the opinion that the cheque was an adjustment cheque for the remainder of his outstanding wage loss benefits that were due to his inability to return to work as a result of the October 29, 2014 re-injury (was paid only partial wage loss benefits since October 29, 2014). It was not obvious to him that this cheque was issued in error.

We further submit that since the WCB confirmed that this was their internal administrative error, and the file information also confirms that [worker] did not know that this payment was issued in error, the Board Policy further directs that such administrative errors be written -off in accordance with Section 5 of the Policy…

We conclude by stating that the evidence supports that this overpayment, in the amount of $3,881.78 should be written-off.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing the WCB decision to collect an overpayment in benefits which was received by the worker. The WCB has acknowledged that the overpayment was due to an administrative error on its behalf.

The 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 the WCB.

The panel notes that the payment was a direct deposit to the worker's account. It was made on February 10, 2015. On February 12, 2015, the error was discovered by the WCB and the worker was notified of the error on that date. The worker's response was that he had spent the payment already. He was notified, both orally and in writing, that he would have to repay the amount received.

With respect to the worker advisor's submission that the worker "was of the opinion that the cheque was an adjustment cheque for the remainder of his outstanding wage loss benefits that were due to his inability to return to work as a result of the October 29, 2014 re-injury," the panel finds this position is not reasonable in the context of the management of the claim. The panel notes that the WCB had written to the worker on February 3, 2015, approximately one week before the payment was deposited in the worker's account, advising that "…the weight of the evidence did not substantiate a change in your physical capabilities and therefore there is no change to earlier decisions regarding your loss of earning capacity."

The panel finds the evidence on file does not support that the worker should have or would be expecting a substantial payment on or near February 10, 2015. The panel also notes the worker has been involved with the WCB on this claim since October 2009. During this time he has had significant contact with the WCB and is aware of WCB rules, processes and policies.

The panel has considered the worker's submission, reviewed the claim file and finds that the error was so material and obvious that the worker should have recognized it and reported it to the WCB. The panel finds that his case does not meet the limited circumstances outlined in Part C (3) (ii).

In this appeal, the panel is only deciding whether the worker is required to repay the overpayment of benefits that he 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 this issue with the WCB.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of June, 2016