The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable and he has been overpaid benefits. A hearing was held on December 12, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker has been overpaid benefits.

Decision

The claim is not acceptable; and

The worker has been overpaid benefits.

Background

On January 28, 2014, the worker reported to the WCB that he had injured his low back and left leg on January 16, 2014 in an incident he described as:

I moved a steel door to place it out of the way when I injured my lower back. No hazard on premises.

The employer submitted their Employer's Accident Report to the WCB on January 28, 2014, and noted that the worker reported the injury to his low back and left leg to them on January 23, 2014. The worker advised the WCB that he could not call his employer to notify them of the injury on or around the date of the injury as the telephone where he was staying was not working. The WCB conducted a further investigation and found that the worker had initially reported his injury to a third party project manager on or about January 16, 2014.

At an initial physiotherapy appointment on January 27, 2014, the worker's reported description of the injury was "Moving a steel door, felt low back pop, instant pain form (sic) low back to left leg below the knee." The worker was diagnosed with "Discogenic back pain with radiculopathy" and it was recommended that he return to sedentary duties for three weeks.

The worker attended an appointment with a sports medicine physician on January 30, 2014. The sports medicine physician noted subjective complaints by the worker of moving a steel door out of the way and feeling his back tighten up, with pain up and down his left leg since. The sports medicine physician diagnosed the worker with a left S1 root irritation/disc and referred him for an MRI. It was recommended that the worker only do supervisory work, avoid prolonged sitting with no heavy work including no lifting or twisting or pulling/pushing.

The WCB accepted the worker's claim on February 11, 2014. Payment of wage loss and other benefits started.

On February 27, 2014, the worker had an MRI study conducted on his lumbar spine. The MRI indicated:

The existing left L5 nerve root appears compromised within the foramen related to a disc protrusion and the spondylolisthesis.

The worker underwent a posterior lumbar decompression and fusion surgery on March 2, 2015.

On June 30, 2016 the worker was notified that an investigation had been launched by WCB Compliance Services regarding allegations that the worker had claimed WCB coverage for a workplace injury that was the result of his self-employment activities rather than his employment with his accident employer and further that he had knowingly misrepresented his self-employment income to WCB for the purpose of increasing his entitlement to wage loss benefits.

Although WCB Compliance Services had commenced an investigation, the worker's entitlement to benefits continued. On August 25, 2016, the worker was advised by the WCB that his restrictions of avoiding lifting from floor to waist over 50 pounds, avoiding carrying over 50 pounds, avoiding pushing/pulling activities over 50 pounds and avoiding frequent twisting and prolonged forced static postures were permanent, based on a review by the WCB medical advisor. He was further informed that his employer could not accommodate those restrictions. However, even if the employer could have accommodated the worker's restrictions, the worker had been terminated from his employment with the accident employer. As a result, he would be referred to a Vocational Rehabilitation Specialist.

The WCB's Compliance Services advised the worker on October 11, 2016 that, based upon their investigation, it had been determined that he misrepresented the amount he earned through self-employment activities in 2013 and that he had also misrepresented whom he was working for at the time of the workplace accident on January 16, 2014. The worker was further advised that the findings were referred to the WCB's Compensation Services to determine the impact on his claim. On October 18, 2016, the WCB advised the worker that his benefits were suspended as a result of the WCB Compliance Services investigation. A decision regarding further entitlement to benefits would be provided once the WCB's Compliance Services had completed further investigation.

On July 7, 2017, the WCB's Compliance Services provided the worker with an Investigation Final Report. The WCB's Compliance Services confirmed their investigative findings that the worker had misrepresented his self-employment income in 2013 to the WCB and that he had misrepresented whom he was working for at the time of the reported workplace accident and, as a result, received benefits he was not entitled to. The worker was advised that the Investigation Final Report would be sent to the WCB's Compensation Services for consideration on his claim.

The WCB advised the worker on July 20, 2017 that, based on the investigation of his claim, it was determined that his claim was not acceptable and he had been overpaid benefits and that he would be responsible for repaying the full amount of the overpayment.

On January 24, 2018, the worker's legal representative requested reconsideration of the WCB's July 20, 2017 decision to Review Office. The worker's legal representative noted the worker's disagreement with the findings of the WCB's Compliance Services including his reported self-employment income in 2013 and the worker's alleged inconsistent statements made during the investigation.

On May 22, 2018, Review Office upheld the WCB's decision that the worker's claim was not acceptable and he had been overpaid benefits. The Review Office noted that the overpayment calculation at that time was in the amount of $200,977.61 for both wage loss and medical aid benefits. The Review Office concluded that, on a balance of probabilities, the worker sustained his back injury while performing self-employment duties for the project manager and not his employer. The Review Office determined that the worker sustained a personal injury but not while in the course of his employment with the employer and therefore his claim was not acceptable and he had therefore been overpaid benefits.

The worker's legal representative filed an appeal with the Appeal Commission on June 27, 2018. An oral hearing was scheduled.

Following the hearing, the appeal panel requested the worker provide additional information prior to the panel discussing the case further. The requested information was later received from the worker's legal representative. On January 10, 2019, the panel met further to discuss the case and render its final decision on the issues 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 WCB's Board of Directors.

Subsection 4(1) of the Act provides: 

Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Accident is defined in subsection 1(1) of the Act, which provides as follows: 

"accident” means a chance event occasioned by a physical or natural cause; and includes 

(a) a willful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured;

Policy 35.40.50-Overpayment of Benefits

POLICY PURPOSE 

The Workers Compensation Act of Manitoba (the Act) provides that the Workers Compensation Board (WCB) may recover overpayments when an injured worker or worker's dependant has been paid more than they were entitled to under the Act. The WCB strives to prevent overpayments of benefits; however, the payment of benefits in as timely a manner as possible means that some overpayments will inevitably occur. This policy establishes the framework for preventing, recovering and writing off overpayments, and outlines the effect of overpayments on an employer's assessment rates or WCB costs.

B. Recovery of overpayments: 

All overpayments will be pursued for recovery when: 

1. … 

2. there is evidence of fraud, deliberate misrepresentation, delays in providing or withholding of key information by the injured worker or worker's dependant affecting benefit entitlement; or 

3. …

Worker's Position

The worker is appealing the WCB Review Office decision that his claim is not acceptable and that he had been overpaid benefits. The worker was represented by legal counsel who provided a presentation to the panel.

The worker answered various questions asked of him by his legal counsel and the Panel.

The worker's assertion was that he was not installing the door when he moved it on January 16, 2014 and sustained his back injury. The worker stated that he was instead moving the door out of the way so he could install the bathroom fixtures (toilet and sink) when he sustained his injury. The worker stated that the door he was moving was an extra door that had been left in the washroom and it was in his way when he went to install the plumbing fixtures. The installation of plumbing fixtures was within the scope of his job with the accident employer. Therefore, since the worker was performing his duties with his employer when he sustained his injury, the claim should be accepted and he was entitled to benefits as the claim arose out of and in the course of his employment. Further, since the worker was entitled to WCB benefits for his work related injury there is no grounds to find that the worker was overpaid benefits by virtue of him receiving WCB benefits for an injury that occurred while being self-employed.

Employer's Position

The employer did not participate in the appeal.

Analysis

For the worker's appeal to be accepted, the panel must find, on a balance of probabilities, that the worker sustained an injury by an accident arising out of and in the course of his employment with the accident employer. The panel is unable to make such a finding. 

In coming to this conclusion, the panel places significant weight on several factors.

In the spring of 2015 the worker submitted new information to the WCB regarding additional income he had earned prior to the January 16, 2014 injury. This consisted of seven invoices, including invoices for work he had performed for the project manager on the same construction project that he was working on through the employer that he made his WCB claim under. One of those invoices dated December 23, 2013 described the work invoiced as "Install supplied steel doors for (building) project. Installed doors on main floor." While the worker has stated repeatedly to the panel that all the steel doors (including the 2nd floor washroom doors) were installed in December 2013, the invoice submitted by the worker to the general contractor appears to contradict this as the invoice specifically identifies that the steel doors on the main floor were installed at that time.

After the hearing, the panel requested that the worker provide a written response as to why the December 23, 2013 invoice specifically states that the steel doors installed were on the main floor only, given that the worker stated at the hearing and during prior interviews with WCB that the worker had installed all the doors on both the main floor and the second floor at the construction site in December.

The worker's written response (through his counsel) to the panel's question stated that the December 23, 2013 invoice which specified only the installation of the main floor doors was "….incomplete without the full description of work he performed. The invoice was billed around the winter holidays and (the worker) advises that he was rushed when he returned from (the work location) and drafting the invoice."

However, during the WCB Compliance Services investigation, the project manager provided WCB with an additional invoice dated January 28, 2014. This invoice had been submitted by the worker to the project manager and had not been provided to the WCB at the time that the worker submitted the seven previously noted invoices. The January 28, 2014 invoice stated, in part; "January 16 Installed temp heat in lobby, started installing steel doors in washrooms 2nd floor."

When the worker was asked at the hearing why the January 28, 2014 invoice specifically referred to door installation in the second floor washroom, the worker replied that all the doors had already been installed throughout the building in December and that the worker was only installing the door hardware on the second floor washroom door on January 16, 2014.

When asked why the worker would submit an invoice that stated "started installing steel doors" if the actual work he performed on that day was only installing the door hardware, the worker replied:

To me it all, it all meant the same thing. A door installation from my perspective, is you install the framing, install the door, you install the hardware, the handles, the closures (sic), and then that's an installed door.

So if it's not, if your missing handles and hardware and the closures (sic), it's not installed yet, it's just hung.

The panel does not accept the worker's explanation of the documentation for either the December 23, 2013 invoice and/or the January 28, 2014 invoice. The panel finds that these two invoices, when viewed together, establishes that the door installation work that was performed by the worker and billed to the general contractor in December 2013 consisted of only door installations on the main floor and that the work that was performed for the general contractor on January 16, 2014 included the installation of the washroom doors on the 2nd floor, which was the same date, location at the worksite and door which the worker claimed to have injured himself while moving on January 16, 2014.

The door installation work performed by the worker for the project manager was not within the course of the worker's employment with the accident employer. Therefore, the panel concludes that when the worker injured his back while moving a door on January 16, 2014, he was not performing duties for the accident employer but instead he was performing duties for the project manager. The panel finds that the worker's back injury did not arise out of and in the course of his employment with the accident employer.

The panel's position is further supported by the entry for January 17, 2014 on the January 28, 2014 invoice from the worker to the construction project manager. This invoice states: "…Supervision Steel Doors 2nd Floor, Organize Material." It is the panel's position that the January 17, 2014 entry on the above noted invoice, when viewed along with the January 16, 2014 entry on the same invoice which states "…started installing Steel Doors in washrooms 2nd floor." establishes that it is probable the worker began to install the 2nd floor steel doors on January 16, he injured his back in the course of that installation and then, because of his injury, supervised other workers on site installing the 2nd floor doors on January 17, 2014.

It was also noted by the panel that on the same January 28, 2014 invoice the worker stated his duties on January 19, 2014 were "Door closers for five doors, fixed 2 broken handles, started painting frames." It is the panel's position that this entry on the invoice is at odds with the worker's explanation that "installing doors" meant more than installing doors into the frame and included such things as installing door handles and closers as the worker had identified the installation of doors and installation of door hardware as different tasks on the same invoice.

Also taken into consideration by panel was that once WCB Compliance Services had received a copy of the January 28, 2014 invoice from the project manager, they requested that the worker provide them with the original January 28, 2014 invoice. The worker provided the original invoice on or about March 2, 2018. It was noted by WCB Compliance Services that the original invoice had been altered to indicate that the description of the work performed on January 16 was "Installed temp heat in lobby, started installing steel doors in "lobbyrooms" 2nd floor (the word washrooms had been overwritten to read "lobbyrooms"). When asked about this at the hearing, he worker could not provide an explanation as to why the invoice provided by him was different than the copy that was provided by project manager. The worker's response to this question at the hearing was: "I have no idea, not me. Absolutely not me, it doesn't make sense." It is the panel's finding that the worker had intentionally attempted to alter the January 28, 2014 invoice to make it appear that the worker had not "…started installing steel doors in the 2nd floor washroom…" for the project manager on January 16, 2014.

Further, while the worker asserted that one of his tasks performed for the project manager was to 'supervise' other construction workers at the site for approximately four hours per day, in addition to, and after the 8 hours each day he was performing supervisory responsibilities of the same construction workers through his accident employer (who then invoiced the project manager for the worker's supervisory responsibilities), the worker stated that this arrangement was made between himself and the project manager so that the project manager did not have to pay the worker's accident employer at overtime rates for the supervision provided by the worker beyond the regular 8 hours per day. Given that the worker reported that his back injury occurred in the morning of January 16, 2014, the worker asserted that this further established he was performing work for his accident employer when he was injured as his duties with the project manager would be performed after his regular 8 hours shift with the accident employer. The implication being that, if the worker had injured his back while working for the project manager, then the injury would have occurred in the evening, after his work day with the accident employer.

When WCB Compliance Services questioned the project manager about this, the project manager denied that the after-hours supervision arrangement had existed. The panel notes that there was no invoicing on file that supported that the worker had "supervised" on behalf of the project manager after-hours prior to January 16, 2014 which one would have expected to exist had such work been performed. However, there was an invoice (#14-307) on file from the worker's accident employer to the construction project's general contractor in the amount of $8349.79 which the worker confirmed was submitted by his employer to the general contractor for the worker's supervision of construction work. The panel notes that the invoice includes 30 hours at overtime rates which appears to be contrary to the worker's assertion that the general contractor had hired the worker to perform supervision to avoid the incursion of overtime.

The panel does note that the January 28, 2014 invoice does refer to the worker "supervising" on four occasions between January 15 and January 23, 2014 (among other duties performed on those dates), all these instances occurred after the worker was injured, which is consistent with the worker's evidence that he was told by the project manager, when the worker was in contact with him on January 16, 2014 and advised him of the injury, to supervise the other employees due to his injury. While it is apparent that the worker was invoicing the project manager for self-employed work performed outside the scope of his employment with his employer between January 15 to January 23, 2014, there is no evidence to establish whether or not the work noted on the January 28 invoice had been performed outside the worker's regularly scheduled hours with his employer. Both the worker's time card for his employer as well as the January 28, 2014 invoice to the project manager indicate how many hours the worker worked for each company on January 16, 2014 (8 hours for the accident employer and 4 hours for the project manager), neither document states what time of day the worker was performing the specific tasks for either his employer or the project manager. However, for the purposes of this hearing, and given that the panel has already determined that the worker was involved in self-employment duties that were being performed for the project manager when the worker injured his back, it is not necessary for the panel to make a determination of exactly what time the worker was scheduled to perform work for the accident employer as opposed to being scheduled to perform his duties for the project manager.

The panel also considered that the worker initially advised WCB on January 30, 2014 that he did not report the accident until he returned from the work location after January 23, 2014 because the phone was not working in the residence he was staying at in the construction area. However, later information confirmed that the worker did advise the project manager on the date of the injury, but did not advise his direct employer. The worker later explained that it was his understanding that he was to report directly to the project manager but he was unable to explain the contradiction in information as to why he told WCB that he did not report to accident to anyone for over a week (because of inability to easily access a phone) but then confirmed that he did report the injury to the project manager on the date of the injury. The panel finds that the worker did not initially disclose that he reported his injury to the project manager (and not his employer) on the date of the injury to avoid indicating whom he was working for at the time of the injury.

Based on reviewing the totality of the evidence provided, it is the panel's position that the worker was not performing work of the accident employer when he was injured on January 16, 2014 and, as a result the worker was overpaid benefits on his claim.

As a result, the worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. Kernaghan - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of February, 2019