Decision #29/22 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is responsible for repayment of an overpayment. A hearing was held by teleconference on January 25, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is responsible for repayment of the overpayment.

Decision

The worker is responsible for repayment of the overpayment.

Background

The worker has an accepted WCB claim for an injury to his right knee which occurred as the result of an accident at work on August 13, 1985. Due to residual effects of the compensable injury and its treatment, the worker underwent a right knee arthroplasty on June 27, 2017, following which temporary restrictions were placed on the worker. On February 13, 2018, the worker's current employer advised the WCB that they were unable to accommodate the worker within those restrictions.

In anticipation of the worker's restrictions being permanent, the WCB referred the worker to vocational rehabilitation for an assessment of his eligibility for vocational benefits and services. On June 26, 2018, a WCB medical advisor reviewed the worker's file and determined the worker's restrictions were permanent. On November 14, 2018, based on the vocational rehabilitation assessment, the WCB determined that the worker should be deemed unemployable and he was placed on long term wage loss.

On December 5, 2018, a WCB medical advisor determined that the worker was at maximum medical improvement, and noted that he would be assessed for a possible permanent partial disability ("PPD") rating. On April 26, 2019, the worker was assessed by a physiotherapist with respect to his right knee mobility deficits. On May 1, 2019, a WCB physiotherapy consultant reviewed the worker's file and the report from the assessing physiotherapist and advised that the worker's calculated range of motion impairment rating was 4.8% and his recommended cosmetic impairment rating was 1.0%, resulting in a total recommended impairment rating of 5.80%.

On May 3, 2019, the WCB advised the worker of his entitlement to a PPD rating and award. The WCB advised the worker that he had the option of receiving the award in either one lump sum payment or as a monthly payment. The WCB further advised the worker that once he notified them of the option he was choosing, his wage loss payments would be "…reduced by the equivalent amount of your monthly pension award." On June 24, 2019, the worker provided the WCB with a signed release confirming he was accepting a lump sum payment in settlement of his monthly PPD related to his 1985 workplace injury.

On January 18, 2021, the WCB conducted an annual long term wage loss review, in the course of which the WCB payment assessor noted that "…the monthly Lump Sum Settlement (LSS) was not used in [the worker's] wage loss calculations. That is, he has been paid full wage loss (deemed unemployable) for the full period of April 26/19 to date…As such, [the worker] has been overpaid." On January 20, 2021, the WCB notified the worker that an overpayment had "…occurred because the Monthly lump sum settlement award was not deducted from your long term wage loss benefits." The WCB advised the worker of the amount of the overpayment and their plan to recover the overpayment by deducting $100.00 from the worker's current WCB benefits in each bi-weekly benefit period until the overpayment was repaid.

On January 27, 2021, the worker filed a request for reconsideration with the Appeal Commission, which was forwarded to Review Office on the same date. In his request, the worker submitted that the WCB should have been aware the amounts were not being deducted and he should not be responsible for repayment.

On March 29, 2021, Review Office determined that the worker was responsible to repay the overpayment. Review Office noted the WCB policy for overpayment stated that recovery of an overpayment would be pursued in the case of an administrative error if the worker could or should have been aware of the error. Review Office found that the worker was aware his wage loss benefits should have been reduced by the monthly amount of the PPD award and that he was therefore responsible to repay the overpayment.

On April 26, 2021, the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), the regulations under the Act and the policies established by the WCB's Board of Directors.

WCB Policy 35.40.50, Overpayment of Benefits (the "Policy"), establishes the framework for preventing, recovering and writing off overpayments. Part B.II. of the Policy, relating to the recovery of overpayments, provides in part that:

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 dependant 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 dependant 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…

Worker's Position

The worker was self-represented. The worker made an oral presentation at the hearing and responded to questions from the panel members.

The worker's position was that the WCB made the error which resulted in an overpayment, not him, and he should not be responsible for repaying that overpayment.

The worker said he received the settlement for his PPD award, and the WCB was supposed to take a certain amount of money from his ongoing benefits each month to account for that settlement. He assumed the WCB was taking that money off, and did not pay close attention to his bank account. All of a sudden, however, he was contacted by the WCB and told that he had been overpaid and owed the WCB more than $4,700.00.

The worker submitted that the person who was responsible for taking that money off had a job to do and did not do it. The WCB was now blaming him for something he did not do and wanting him to pay back money that he did not have. The money he received had been spent and was long gone. He noted that times were tough and he does not have the means to pay money back to the WCB.

The worker submitted that it was not his fault if he was overpaid. He said he did not try to steal any money; he simply received the money and spent it. The worker submitted that the WCB was penalizing him, and he should not be held responsible and have to pay for someone else's mistake.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is responsible for repayment of the overpayment. For the worker's appeal to be successful, the panel must find that the worker is not, or should not, be responsible for repaying the overpayment. The panel is unable to make that finding, for the reasons that follow.

The panel notes that the issue which is before us is very narrow. The worker has acknowledged, and confirmed at the hearing, that an error was made which resulted in the payment of benefits to which he was not entitled. The worker did not dispute the amount of the overpayment, as calculated. The only issue was whether the worker is, or should be, responsible to repay that amount.

In May 2019, the WCB determined that the worker was entitled to a PPD rating and award as a result of his August 13, 1985 workplace accident and injury. The worker was given the option of receiving the award in either one lump sum payment or as a monthly payment. The worker was further advised that effective the date of notification of the monthly pension option he was selecting, his bi-weekly payment would be reduced by the equivalent amount of his monthly pension award.

Information on file shows that prior to choosing one of these options, the worker specifically inquired as to whether his bi-weekly payments would be reduced by the monthly PPD amount if he decided to take the lump sum settlement, and the WCB confirmed that regardless of whether he decided to take a monthly pension payment or a lump sum settlement, his bi-weekly wage loss benefits would be reduced by the equivalent amount of the monthly pension award. The worker subsequently provided a signed release dated June 19, 2019, confirming he was accepting a lump sum payment in settlement of his monthly PPD.

The worker also confirmed at the hearing that he knew his bi-weekly benefits were going to be reduced by the monthly pension amount and that he had agreed the WCB could do so. He further stated that he had no problem once the WCB started to deduct the monthly pension amount from his bi-weekly benefits once they realized their error, and noted that this is what they should have done from the beginning and what he had given them permission to do.

The worker's evidence was that he did not pay close attention to his back account, that he was not that kind of person. He said he knew now that his bi-weekly cheque should have been reduced, but did not notice it then; that:

…I don't be in watch, and all that kind of stuff, like probably some people do, every penny. When my money come in the bank I made, paid my bills and done what I had to do, and when it was gone it was gone, and I waited for another one to come, that's all….I'm not the person that gets in and looks at every dollar and cent…

…like I told you, I don't go in every payday and look and see exact penny that is down, or whatever, it goes in the bank and I spend it, that's all.

While the worker indicates that he was simply spending what he received and was not really paying attention to the amount he was being paid, the panel is of the view that a worker has some responsibility to be aware of what they are actually being paid. The evidence shows that the worker was paid bi-weekly by direct deposit into his bank account, and he would therefore have seen or been able to see the actual amounts that were being paid into his account. In the circumstances, the panel is satisfied that the worker could or should have known that his bi-weekly benefit amount had not changed, that the agreed-upon deduction had been made with respect to the monthly equivalent of PPD award, and that he was being overpaid.

While the worker has argued that he is not to blame for the overpayment which occurred, the panel notes that the matter of fault is not at issue. There is no suggestion that the worker was at fault or to blame for the error that was made in the calculation of the worker's ongoing benefits. The issue is whether the worker is responsible for repayment of the overpayment of benefits which were paid in error and which the worker was not entitled to receive.

In the circumstances, the panel is satisfied that failure to deduct the monthly equivalent of the permanent partial disability award was a calculation or administrative error which resulted in an overpayment which the worker could or should have been aware of, and which is subject to recovery in accordance with the Policy.

Finally, the panel notes that while the worker referred to times being tough and not having the money to pay the WCB back, the evidence does not support that the recovery of the overpayment would result in financial hardship as is contemplated under the Policy.

Based on the foregoing, the panel finds that the worker is responsible for repayment of the overpayment.

The worker's appeal is dismissed

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 25th day of March, 2022

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