Decision #76/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was overpaid benefits in relation to the receipt of Canada Pension Plan Disability benefits. A file review was held on February 22, 2017 to consider the worker's appeal.
Issue
Whether or not the worker has been overpaid benefits in relation to the receipt of Canada Pension Plan Disability benefits.
Decision
That the worker has been overpaid benefits in relation to the receipt of Canada Pension Plan Disability benefits.
Background
In November 2000, the worker filed a claim with the WCB for numbness he was experiencing in both his hands and arms. On October 7, 2013, it was determined by the Appeal Commission that the worker's bilateral osteoarthritic condition in his elbows related to his employment and that he was entitled to compensation benefits and services. It was eventually determined by the WCB's vocational rehabilitation branch that the worker was considered "unemployable" due to various reasons and therefore he was entitled to receive payment of full wage loss benefits until he reached the age of 65 years.
On February 22, 2005, the worker was advised by the WCB that he was overpaid benefits that amounted to $12,328.31. The overpayment was the result of the worker collecting Canada Pension Plan (CPP) disability benefits dating back to June 1, 2003. The WCB considered this to be a collateral benefit and that it must be repaid. On March 5, 2005, the worker appealed the decision to Review Office.
On May 2, 2005, Review Office confirmed that the benefits received by the worker through CPP disability must be taken into account when calculating the amount of his wage loss benefits and therefore he was overpaid wage loss benefits. Based on WCB policy, the overpayment of wage loss benefits must be paid back to the WCB.
On November 21, 2016, the worker appealed Review Office's decision to the Appeal Commission. The worker stated: "My Canada pension benefits were in place because I paid into it all these years, they were meant to be there for me in event I became disabled, which I was and still am to this day. I strongly believe this monies should have and should be returned to me in full."
On February 22, 2017, a file review took place at the Appeal Commission to consider the worker's appeal.
Following the file review, the appeal panel requested additional information from the worker's treating physician regarding the worker's application for CPP benefits. The requested information was later received and was provided to the worker for comment. On May 11, 2017, the appeal panel met further to discuss the case and rendered its decision on the issue under appeal.
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 Board of Directors.
When a worker receives wage loss benefits for a loss of earning capacity resulting from a workplace accident, the worker’s average earnings are used to calculate the benefit rate. Subsection 45(1) of the Act addresses the calculation of average earnings. Subsection 40(3) sets out the calculation of net average earnings.
With respect to the deduction of CPP benefits from a worker's wage loss, WCB Policy 44.80.30.10, Establishing Post-Accident Earning Capacity, provides in part that:
c) Collateral Benefits When the worker receives benefits for the same work-related injury or illness from the WCB and other sources, the WCB may adjust the amount of wage-loss benefits paid to a worker. These other sources of benefits may be called collateral benefits.
Under subsection 41(1) of the Act, collateral benefits are defined as:
(a) any periodic benefit the worker is entitled to receive under the Canada Pension Plan, the Quebec Pension Plan, the Employment Insurance Act (Canada), and a policy of disability insurance;
The worker is appealing the WCB decision to include his CPP disability benefits as income resulting in an overpayment of benefits.
WCB Policy 35.40.50, Overpayment of Benefits, provides that the WCB may recover overpayments of compensation benefits from workers. Subsection 4.(i) of the policy provides that overpayments will be pursued for recovery where the overpayment represents a duplication of benefits paid from another source for the same injury, for example CPP Disability benefits.
Worker's Position
In his Appeal of Claims Decision form dated November 21, 2016, the worker advised that he received money for CPP Disability Benefits dating back to June 1, 2003 in the sum of $12,328.31. He said that the WCB requested the entire sum be returned in full.
He advised that his CPP benefits were in place because he paid into CPP for years. He said the funds were meant for him in the event that he became disabled. He said that he became disabled and remains disabled. He asked that the funds be returned to him.
The worker wrote a second letter on February 6, 2017. He asked, in part, that:
Before you make your final decision, please reconsider the hardship that I have gone through with this unnecessary and unfair ordeal. I have lost two of my homes that I worked hard for all these years and, also lost my family, my wellbeing, and my respect for the WCB for taking my CPP Disability, and retro that I have contributed to all these years. This should be paid back or reimbursed with interest as it was wrong. It will not bring back my house or family but it would give me great satisfaction knowing this should never have happened to me or anyone else.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether the worker has been overpaid benefits in relation to the receipt of Canada Pension Disability benefits. The worker has submitted that CPP disability benefits should not be considered when calculating his wage loss benefits.
In order for the worker’s appeal to be successful, the panel must find that the CPP disability benefits are not collateral benefits. If the CPP disability benefits are injury-related, they must be included by the WCB in determining the worker's post-accident earnings. The panel must therefore find that the worker's CPP disability benefits are not paid for the accepted compensable injury. The panel was not able to make this finding.
As previously noted, the worker was in receipt of WCB wage loss benefits and also CPP disability benefits. The Appeal Commission contacted the worker's physician to obtain information regarding the worker's application for CPP disability benefits and specifically the conditions for which the CPP coverage was sought. The panel finds that it is clear from the documentation provided by the physician that the worker applied for CPP disability benefits for his workplace injury.
In the application form completed by the worker's physician, the physician noted that the worker had osteoarthritis of both elbows. He also noted the worker's related ulnar nerve issues. The panel notes these conditions have been accepted by the WCB, and are the reason for which the WCB has paid benefits.
The panel finds that the worker received the CPP Disability Benefits for the same injury that the worker was in receipt of WCB wage loss benefits. The panel finds that it was therefore appropriate to include the amount of the CPP disability benefits in the worker's income. The panel also finds that the receipt of the CPP disability benefits resulted in an overpayment of benefits.
The panel notes that the worker's CPP child benefits were not included as wage loss by the WCB.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of June, 2017