Decision #57/20 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that she has been overpaid partial wage loss benefits and that she is required to repay the overpayment. A hearing was held on April 11, 2020 to consider the worker's appeal.
Whether or not the worker has been overpaid partial wage loss benefits; and
Whether or not the worker is required to repay the overpayment.
The worker has been overpaid partial wage loss benefits; and
The worker is required to repay the overpayment.
The worker has an accepted WCB claim as the result of a motor vehicle accident that occurred on January 25, 2002. The worker sustained physical and psychological injuries from the workplace accident. In February 2005, permanent restrictions were recommended for the worker which made her unable to return to her pre-accident job duties and she was referred for vocational rehabilitation.
A vocational rehabilitation plan was created for the worker for the National Occupational Classification (NOC) 6421 – Elemental Sales Occupations and concluded on October 31, 2005. As of November 1, 2005, the worker was deemed capable of earning minimum wage and partial wage loss benefits were paid to the worker based on that deem.
Between 2006 and 2015, the worker gained employment in various positions with part time hours. As part of the administration of her claim, the WCB requested income information annually from the worker and annual reviews and adjustments to the worker’s long term partial wage loss benefits were conducted. On November 6, 2015, the worker completed and returned an Other Income Information form to the WCB indicating that her disability pension plan payments had ended and noting income information commencing on August 26, 2015. On November 27, 2016, the worker completed another Other Income Information report noting her employment income that commenced in August 2015.
On January 19, 2017, the WCB contacted the worker to advise that based on her reported employment income, she had been overpaid benefits and asked that she provide income information to the WCB in order for the overpayment to be calculated. Additional income information was provided by the worker and on August 3, 2017, the WCB advised the worker of the overpayment amount. On September 5, 2017, the worker requested reconsideration of the WCB’s decision to Review Office. Review Office returned the worker’s claim to the WCB’s Compensation Services on October 18, 2017 for further investigation related to the worker’s receipt of a disability pension plan for a non-compensable health concern, whether or not the minimum wage calculations were correct as the worker resided in a different province and whether or not the worker’s permanent restrictions still applied as she had returned to her pre-accident occupation.
The WCB gathered further information and on June 21, 2018, provided the worker with a new decision. The worker was advised that her partial wage loss benefits were adjusted as it was determined her accepted compensable injuries were a major contributory factor for her receiving the disability pension plan; that the minimum wage amount used was within an acceptable variance amount so no adjustment would be made; and that she no longer had a loss of income after August 25, 2015 as she returned to her pre-accident job duties. The worker was also provided with an updated overpayment calculation.
The worker requested reconsideration of the WCB’s June 21, 2018 decision to Review Office on July 5, 2018 and on August 13, 2018, Review Office returned the worker’s file to the WCB’s Compensation Services to gather further medical information. The WCB requested and received an updated report from the worker’s treating psychiatrist on July 11, 2019, which was reviewed by a WCB psychological consultant on the same date and opined that the worker had recovered from previously diagnosed post-traumatic stress disorder (PTSD) and no longer required restrictions on her job duties. On July 15, 2019, the worker was advised that the June 21, 2018 decision remained unchanged, that she had been overpaid partial wage loss benefits from August 25, 2015 to January 22, 2017 as it was determined she had recovered from the effects of the workplace accident and she was required to repay the overpayment.
On August 1, 2019, the worker again requested reconsideration of the WCB’s decision to Review Office, relying on her submissions she provided previously including her belief that the payments being made to her were a pension amount provided until she turned 65 years of age.
Review Office determined on September 24, 2019 that the worker was overpaid partial wage loss benefits and she was responsible to repay the overpayment amount. Review Office found that the medical information on the worker’s file supported that the worker did not require the permanent restrictions and as of August 26, 2015, the date the worker returned to similar pre-accident job duties, the worker no longer had a loss of earning capacity related to the January 25, 2002 workplace accident. Review Office further found the worker was overpaid partial wage loss benefits from August 26, 2015 to January 22, 2017. The worker requested Review Office reconsider the decision on October 18, 2019 but was advised by Review Office on the same date there would be no change to their decision.
The worker filed an appeal with the Appeal Commission on December 19, 2019. An oral hearing was arranged.
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 that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: “… where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.
Section 109.2 of the Act provides that where a worker receives an overpayment of compensation, being an amount that the Board determines in excess of that to which the person is entitled, the WCB may recover the overpayment as a debt due to the Board.
WCB Policy 18.104.22.168, Loss of Earning Capacity Reviews, provides that the WCB will establish an overpayment when a worker receives actual post-accident earnings that are more than 5% greater than the worker’s estimated earning capacity.
WCB Policy 35.40.50, Overpayment of Benefits, 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. The Overpayment Policy states in part that:
B. Recovery of overpayments:
All overpayments will be pursued for recovery when:
1. The overpayment is a result of an administrative error that the injured worker or worker’s dependent is notified of within 30 days of it occurring. Administrative errors noted after 30 days will be pursued if the injured worker or/injured worker’s dependent could or should have been aware of the error. These are not adjudicative or entitlement decision errors. These are errors made by the WCB in implementing a decision, i.e. adjustments made to earnings to correct clerical or mathematical errors.
The worker was self represented at the hearing and participated in the hearing by teleconference.
It was the worker’s position that she should not be responsible for the overpayment as she says she had been led to believe that the WCB payments that were being made to her were a form of pension to which she was entitled until she reached 65. She further says that she was, at all times, forthcoming with her case manager and the WCB with respect to any income earned by her and that she advised the WCB in the fall of 2015 that she had returned to work.
The worker was therefore of the view that if there had been an overpayment, the overpayment was a result of an internal error on behalf of the WCB and, as such, the WCB and not the worker should be responsible for correcting the error. In other words, as the overpayment was not her fault, she ought not be to be held responsible for any repayment. She therefore requested that the WCB take responsibility for the error and the overpayment.
The employer did not participate in the appeal.
There are two issues before the panel:
(1) whether or not the worker has been overpaid partial wage loss benefits; and
(2) whether or not the worker is required to repay the overpayment.
For the worker’s appeal to succeed, the panel must find that the wage loss benefits paid to the worker by the WCB did not constitute an overpayment or that the worker ought not to be required to repay any overpayment that may have been made. For the reasons that follow, the panel is unable to make either finding.
The worker sustained serious injury in a motor vehicle accident in 2002, including both physical and psychological injuries (post traumatic stress disorder or PTSD). As a result of her injuries, the worker received various benefits and in 2005, it was determined that the worker’s PTSD precluded her from returning to her pre-accident employment as a truck driver. Permanent restrictions limiting her ability to drive a truck or drive in high volume traffic were put in place. After completing a vocational rehabilitation plan, the worker was deemed capable of earning minimum wage. Partial wage loss benefits were then paid to her based on a minimum wage earning capacity.
For the next several years, the worker was employed in a number of occupations on a part time basis. Throughout this period, she continued to receive partial wage loss benefits. Annual reviews were conducted by the WCB and adjustments were made to the calculations of the worker’s partial wage loss benefits. The worker acknowledges that she was notified by the WCB of the changes to her compensation as they occurred. The worker further acknowledges that she was asked by the WCB to complete certain documentation each year, including an annual Other Income Letter, in which she was asked to specify any additional income earned by her.
In August 2015, the worker returned to work as a truck driver earning an income comparable to her pre-accident income. The evidence establishes that she reported the increased income earned to the WCB that year. She again reported her increased income and the fact that she had returned to work to the WCB the following November. Despite having reported the increased income, the worker continued to receive the same partial wage loss benefit payments she had received prior to her return to work. As the worker continued to receive on-going benefits, she says she assumed that she was therefore entitled to them.
Based on the review of the file, and the worker’s evidence at the hearing, the worker no longer had a loss of earning capacity related to the workplace injuries as of August 26, 2015 when she began employment once again as a truck driver. Her file was reviewed by a WCB psychological consultant in 2019 who opined that the worker had recovered from her previously diagnosed compensable injury, namely PTSD, and that driving restrictions were therefore no longer required.
The worker does not deny that she has continued to receive partial wage loss benefits from the WCB since her return to work. She says, however, that she notified the WCB that she had returned to work and was earning an increased income but WCB did not immediately halt the payment of benefits. She therefore thought she was entitled to ongoing benefits. She also says that she understood that the benefits were some form of pension payment to which she was entitled until the age of 65. Consequently, and although her earnings since her return to work have been at an income level higher than the deemed earning capacity used to calculate her partial wage loss benefits, she did not see any need to raise the matter further with the WCB.
Even though the worker may have been upfront with the WCB about the fact that she had returned to work and was now earning an increased income, the worker did not also report to the WCB that she was continuing to receive partial wage loss benefits even though she was aware that she was continuing to receive benefits. She also acknowledged at the hearing that, at least in retrospect, the on-going payments to her constituted an overpayment. The amount of the overpayment is substantial. Although the worker may have believed she was receiving a pension benefit, it was a partial wage loss benefit and the worker was earning an income greater than her deemed earning income. Hence, the panel finds that although the worker did not attempt to hide her increased income from the WCB, the error in payment to her of on-going partial wage loss benefits over an extended period of time ought to have been recognized by the worker as an overpayment and reported to the WCB accordingly.
Section 5 of WCB Policy 22.214.171.124, Loss of Earning Capacity Reviews, provides that the WCB will establish an overpayment when the worker receives actual post-accident earnings that are more than 5% greater than the worker’s estimated earning capacity. The overpayment in this case falls into that category. The worker has received and has had the benefit of the funds to which she was not entitled.
The fact that the overpayment may have been made as an administrative error on behalf of the WCB does not absolve the worker of an obligation to repay the overpayment that she had been knowingly receiving from the WCB.
Accordingly, the panel finds that there has been an overpayment to the worker and the overpayment must be repaid.
The worker’s appeal is therefore denied.
K. Wittman, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
- Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of May, 2020