Decision #113/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They have been overpaid wage loss benefits; and
2. The overpayment must be repaid to the WCB.
A teleconference hearing was held on October 12, 2023 to consider the worker's appeal.
1. Whether or not the worker has been overpaid wage loss benefits; and
2. Whether or not the overpayment must be repaid to the WCB.
1. The worker has been overpaid wage loss benefits; and
2. The overpayment must be repaid to the WCB.
The worker has an accepted WCB claim for a back strain/sprain injury sustained at work on October 20, 2022. In a discussion with the WCB on October 28, 2022, the worker confirmed the mechanism of injury with the WCB, noting they felt an immediate sharp pain in their lower back and experienced numbness and tingling in their right leg after crouching in different awkward positions while lifting. The worker noted they finished their shift that day but the next morning, felt pain and hot shooting pain through their back and hip and sought medical treatment. The treating physician diagnosed a pinched nerve due to a bulging disc on October 21, 2022 and providing a note with restrictions of no lifting for two weeks. The worker advised the WCB their current symptoms included right leg numbness and inability to sit as it puts too much pressure on their back. The worker also advised the WCB they had concurrent part time employment. The worker’s claim was accepted by the WCB and an initial wage loss payment was processed on November 1, 2022 based on the worker’s earnings from the employer only. On November 16, 2022, the WCB advised the worker they still required their wage information from the concurrent employer.
The worker attended for a follow-up appointment with their treating family physician on November 25, 2022. The physician noted the worker had “moderately improved” and recommended the worker could return to work on light duties, with a 15 pound maximum. Physiotherapy was also recommended. On the same date, the WCB contacted the worker to discuss their claim. The worker advised the employer may not have modified duties for them but their concurrent employer did. During a status update with the WCB on November 29, 2022, the worker advised they had not worked a shift with the concurrent employer yet and the employer did not have modified duties for them. The worker reported their current symptoms of stiffness/grinding in their lower back and felt they were 60% improved, with physiotherapy going well. The employer was provided with the worker’s restrictions on November 29, 2022, who advised on the same date they could not accommodate the worker. At a further status update on December 13, 2022, the worker advised they had been working shifts for the concurrent employer and was scheduled for a CT scan on December 28, 2022. The CT scan indicated “Minor multilevel degenerative disc and facet changes are present…”. On December 30, 2022, a message was left with the worker indicating the WCB required contact information for their concurrent employer to gather wage information.
The worker provided the contact information for the concurrent employer to the WCB on January 9, 2023. On the same date, the WCB contacted the concurrent employer who advised the WCB the worker had not provided authorization to the concurrent employer to release their wage information to the WCB. In a conversation with the worker on January 10, 2023, the WCB advised the worker they required the wage loss information from their concurrent employer so that an appropriate wage loss calculation could be done. As the information had not been received, the WCB contacted the worker on February 7, 2023 and advised without the information, an overpayment would be established. On February 8, 2023 and February 9, 2023, the concurrent employer provided the WCB with the requested wage loss information.
Additional information was received from the concurrent employer noting the worker returned to work on November 27, 2022. Based on the information received, the WCB calculated the worker’s earnings and wage loss benefits paid and determined on March 2, 2023, the worker had been overpaid due to the delay in receiving the wage information from the concurrent employer.
The worker requested reconsideration of the WCB’s decision to Review Office on March 6, 2023. The worker submitted they were offered light duties with the concurrent employer, which they were cleared to perform by their treating physician, but were not aware and had not been advised how many hours they could work. On May 10, 2023, Review Office determined the worker had been overpaid and was required to repay the overpayment. Review Office found the worker was in receipt of full wage loss benefits when they returned to work for the concurrent employer and should have been aware they were being overpaid. Further, Review Office found the worker was working more hours with the concurrent employer and earned significantly higher earnings than they were prior to the workplace accident and as such, should have been aware they were receiving more wage loss benefits then they were entitled to.
The worker filed an appeal with the Appeal Commission on June 21, 2023 and a hearing was arranged.
Applicable Legislation and Policy
The issues for determination in this appeal relate to whether the worker has been overpaid benefits and if so, whether the overpayment must be repaid. In determining the worker’s appeal, the panel is bound by provisions of The Workers Compensation Act (the “Act”) and regulations under the Act as well as the policies established by the WCB's Board of Directors.
The Act provides in Section 4(1) that when a worker sustains personal injury by accident arising out of and in the course of the employment, they are entitled to compensation for their loss of earnings resulting from that accident. Section 4(2) provides that:
Payment of wage loss benefits
4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
The Act further provides that overpayment of compensation can be recovered from the recipient, as follows:
Recovery of overpayments
109.2 Where a person received an overpayment of compensation, being an amount that the board determines is in excess of that to which the person is entitled, the board may recover the overpayment from the person, or from the executors or administrators of the person, as a debt due to the board.
Right of set off
109.3 Notwithstanding section 23 and without limiting the board's remedies for recovery, any money due the board under this Act may be set off against compensation that is or may become payable to the person who is indebted to the board.
The WCB has also established Policy 35.40.50, Overpayment of Benefits (the “Overpayment Policy”) to outline when the WCB will recover overpayments from an injured worker or their dependant. This Policy sets out that 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. The Policy provides, in part, that:
II. 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 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;
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. there is a duplication of benefits paid from another source for the same injury, for example Long Term Disability or CPP disability benefits.
IV. Decision not to proceed with recovery of an overpayment:
The WCB will not pursue an overpayment when:
1. the overpayment is less than $50; or
2. the overpayment resulted from an adjudicative or entitlement decision reversal at the primary level, Review Office or Appeal Commission.
With the exception of those overpayments resulting from fraud, deliberate misrepresentation, withholding of key information by the worker or dependant or duplication of benefits paid from another source for the same injury, the WCB may decide not to pursue an overpayment when:
1. the receivable amount is not cost-effective to pursue;
2. recovery of the overpayment, in whole or in part, would create financial hardship for the injured worker or the worker’s dependant;
3. the individual who received the overpayment has died without sufficient funds in the estate to cover the overpayment; or
4. the overpayment occurred more than three years prior to its discovery by the WCB.
VI. Reconsideration and appeal of an overpayment:
Decisions about the establishment, amount or requirement to pay back an overpayment are subject to reconsideration and appeal. Anytime a reconsideration or appeal is formally received and actively being pursued on an overpayment, recovery attempts will be suspended pending the outcome of the decision. Recovery action may be reinstated before the reconsideration or appeal decision is issued if the WCB has evidence that the primary purpose of the appeal is to defer the recovery process.
The Administrative Guidelines to the Overpayment Policy provide in part that administrative errors will be collected if the worker or their dependant is notified of the error within 30 days of the overpayment. Administrative errors more than 30 days old will only be pursued if the error could or should have been obvious to the worker or dependant. The Administrative Guidelines define administrative errors to include, but are not limited to:
• incorrect use of available information provided by the worker or employer
• incorrect information provided by the employer
• available information was not collected or used when establishing the amount payable
• key stroke errors, etc.
The worker represented themselves in the appeal and provided oral submissions for the panel’s consideration.
The worker’s position, as outlined in their June 17, 2023 Appeal of Claims Decision form provided to the Appeal Commission, is that the small amount they were paid while injured did not result in overpayment. The worker's position was also expressed in an email to the Review Office dated March 6, 2023 as part of the worker's request for reconsideration wherein it was stated that the worker discussed working light duties for a concurrent employer with their case worker and at no point was the worker told how many hours they could work from anyone at WCB. The worker feels he is being punished for trying to return to work.
The worker further submits that the WCB did not calculate the initial wage loss at his concurrent employer but only calculated the wage loss from the accident employer.
The employer did not participate in the appeal.
There are two questions for the panel to determine in this appeal. Firstly, has the worker been overpaid benefits in the amount of $1,827.10 and secondly, if so, whether the overpayment must be repaid.
Addressing the first question, in order for the worker's appeal to succeed the panel would have to determine that the WCB incorrectly calculated the overpayment or that there was not any overpayment of benefits. The panel has not found either circumstance to exist.
The WCB determined on March 2, 2023 that as a result of a delay in receiving pay information from the worker's concurrent employer in addition to a significant increase in earnings with the concurrent employer post-accident an overpayment of $1,827.10 occurred. Despite multiple requests, pay information was not received from the worker's concurrent employer. It is noted that the claim file indicates that the concurrent employer advised WCB that the worker told them not to provide "any payroll information to WCB". The pay information from the concurrent employer was not received until February 2023.
The WCB had paid wage loss benefits to the worker for the period of November 27, 2022 to December 23, 2022 ("the partial wage loss period") in the amount of $2,156.22.
Upon receiving the pay information from the concurrent employer in February, the WCB calculated the worker's actual gross earnings with the concurrent employer for the partial wage loss period and established that the actual partial wage loss due to the worker ought to have been $329.12. Therefore, there was an overpayment of $1,827.10.
The worker raised the concern that the WCB incorrectly calculated the overpayment in that the WCB only considered the wage loss with the accident employer and did not take into account the wage loss with the concurrent employer. The panel notes from our review of the claim file that upon receipt of the pay information from the concurrent employer in February 2023, the WCB recalculated the regular earnings pre-accident with the accident employer and the regular earnings pre-accident with the concurrent employer. It was established that the worker's total combined earnings pre-accident were $840.37 ($678.45 per week accident employer + $161.92 per week concurrent employer). The claim file also indicates that the worker's benefit rate was initially set up based on the accident employer information only but once the concurrent employer pay information was received the benefit rate was revised.
In determining an overpayment has been made, the panel must consider the second question - whether the Overpayment Policy requires that the worker repay the amount of the overpayment.
The Overpayment Policy is clear that all overpayments resulting from delays in providing or withholding key information will be pursued. In this case, the attempt to pay benefits in as timely manner as possible coupled with the delay in providing the requested pay information from the concurrent employer resulted in an overpayment.
The Overpayment Policy further sets out that the WCB may decide not to pursue an overpayment when “…the receivable amount is not cost-effective to pursue; recovery of the overpayment, in whole or in part, would create financial hardship for the injured worker or the worker’s dependant; the individual who received the overpayment has died without sufficient funds in the estate to cover the overpayment; or the overpayment occurred more than three years prior to its discovery by the WCB.” There is a lack of evidence before the panel to support that any of the above circumstances are applicable in the present case and therefore the panel is satisfied that the worker is responsible for the overpayment and the overpayment must be repaid by the worker.
The panel therefore concludes, on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker has been overpaid benefits in the amount of $1,827.10 and that the overpayment must be repaid. The worker’s appeal is denied.
R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of October, 2023