The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are responsible for repayment of the overpayment. A hearing was held on December 6, 2023 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 WCB accepted the worker’s claim for an injury to their right upper arm that occurred at work on August 16, 2021 when the worker was helping an individual to lift a heavy item from the ground and then heard a "POP" from their shoulder. The initial diagnosis was right shoulder strain, which was later updated to right shoulder rotator cuff tear.

On August 19, 2021, the worker attended an initial physiotherapy assessment and on August 20, 2021, the WCB authorized 20 further treatments. On November 16, 2021, the WCB reimbursed the worker for travel expenses incurred to attend 15 physiotherapy appointments between August 19, 2021 and October 25, 2021.

In discussion with the worker on November 30, 2021, the WCB case manager advised the worker that on review of their file, they noted the reimbursement for travel expenses was not correctly calculated so that the worker was overpaid. The case manager advised the worker that a correct calculation would be done, and the worker was responsible for repaying the overpayment.

On December 16, 2021, the WCB sent a letter to the worker confirming the overpayment amount and requesting repayment. On January 19, 2022, a WCB collections officer sent a letter requesting payment by February 4, 2022, and on February 10, 2022, the WCB sent a final request to the worker.

The worker contacted the WCB on March 10, 2022 and requested that collection be put on hold for a few months while they figured out how to arrange for payment. The WCB granted the request until the end of May 2022. On September 13, 2022, the WCB sent the worker a letter requesting payment of the outstanding overpayment by September 28, 2022. On September 29, 2022, the WCB sent a final request, with payment required by October 14, 2022.

On November 2, 2022, the worker requested Review Office reconsider the WCB's decision that the worker was overpaid travel expenses, noting they were not aware of the amount deposited and submitting that the WCB employee who arranged for the deposit should be accountable. Review Office determined on November 29, 2022 that the worker was responsible for repayment of the full amount of the overpayment. Review Office found that while the overpayment occurred as the result of an administrative error, the worker was advised of that error within 30 days of the overpayment occurring. Further, Review Office found the overpayment was for a significant amount of travel expenses, and the worker should have been aware it was an error.

The worker filed an appeal with the Appeal Commission on August 2, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The issue for determination in this appeal is whether the worker is responsible for repayment of the overpayment by the WCB. In determining the worker’s appeal, the panel is bound to apply the provisions of The Workers Compensation Act (the “Act”) and regulations under that Act as well as the policies established by the Workers Compensation Board. The provisions of the legislation in effect at the time of the accident are applicable.

The Act provides in s 4(1) that when a worker sustains personal injury by accident arising out of and in the course of their employment, they are entitled to compensation for their loss of earnings resulting from that accident. Section 109.2 allows the WCB to recover an overpayment of compensation from the recipient, as follows:

Recovery of overpayments 

109.2 Where a person receives 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.

The WCB established Policy 35.40.50, Overpayment of Benefits (the “Policy”) to outline when the WCB will recover overpayments from an injured worker or their dependent. The 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 … is notified of within 30 days of it occurring. Administrative errors noted after 30 days will be pursued if the injured worker… 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; 

… 

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 WCB Policy 35.40.50, Overpayment of Benefits 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 as including any errors made in calculating the amount payable relating to the entitlement decision, such as 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, or key stroke errors.

Worker’s Position

The worker participated in the hearing and made a submission to the panel in support of their appeal. The worker’s position is that the repayment of the overpayment would cause them financial hardship. The worker acknowledged that the overpayment was made but stated that they did not realize it at the time it occurred. The worker noted that they have a significant ongoing health condition that is not related to the workplace injury but may soon cause them to take time off work for treatment. The worker also stated that they have responsibility to help a family member from time to time as needed.

In advance of the hearing, the worker submitted their reasons for appealing in writing, noting that they face a great deal of financial uncertainty related to their health condition, and that they have other expenses to meet, such that they do not have much income left to meet the additional expense of repayment of the overpayment. The worker included documents confirming their medical condition and the reason for assistance of the family member.

In response to questions from the members of the appeal panel, the worker testified to the details of their monthly income and expenses. The worker testified that they believe they are “90%” recovered from the compensable injury and have returned to work, adjusting how they do their job to better protect their shoulder. The worker confirmed they have not had any conversations with the WCB regarding repayment terms or options.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue on this appeal is whether the worker is required to repay the overpayment amount to the WCB. For the worker’s appeal to succeed the panel would have to determine that the repayment of the overpayment is not required under the provisions of the Policy which permit the WCB not to pursue payment in certain circumstances. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel noted that the worker does not dispute either the amount of the overpayment nor receiving an overpayment of benefits related to their travel expenses for physiotherapy, but the worker believes that they should not be responsible for repayment because it was the WCB’s error, and they will face financial hardship if required to repay the $1092.11 overpayment amount.

The panel considered that the Act permits the WCB to recover an overpayment amount from the person to whom it was paid. The Policy outlines that the WCB will pursue recovery of overpayments when the overpayment is the result of an administrative error. We find that is the case here, as confirmed in the claim file. In calculating the mileage reimbursement due to the worker, an error was made as confirmed by the Claim Note dated November 5, 2021, in that the distance from the worker’s home to physiotherapy was noted as 238 km return, but actually was 23.8 km. The panel is satisfied that the placement of the decimal point was a keystroke error, that meets the definition of an administrative error as provided for in the Policy.

The panel noted that the administrative error was initially made on November 5, 2021 and was confirmed when the payment was issued to the worker on November 16, 2021. The error was noted by the WCB on November 30, 2021 and the WCB informed the worker the same day. This was less than 30 days after the error was made. The panel considered that the Policy clearly states that all overpayments will be pursued for recovery when the overpayment is a result of an administrative error that the injured worker is notified of within 30 days of it occurring. That is the case here. As such, we are satisfied that the WCB appropriately applied this provision of the Policy and pursued the worker for recovery of the overpayment amount.

The Policy also permits the WCB not to pursue an overpayment amount in specified circumstances, including when the receivable amount is not cost-effective to pursue, when recovery of the overpayment, in whole or in part, would create financial hardship for the injured worker or the worker’s dependent, or when the overpayment occurred more than three years prior to its discovery by the WCB. Here, the worker submitted that repayment of the overpayment would create a financial hardship for them, as they argued they have little income remaining each month after paying their expenses and further, as they anticipate they may have to leave work in the coming months to obtain treatment for their non-compensable health condition.

The panel considered the worker’s testimony that they are currently working fulltime at their pre-accident employment and earning an income from that employment that exceeds their monthly expenses. We noted there is no evidence that the worker has any dependents, although the worker testified that they provide support to another family member from time to time as needed and as they are able. Furthermore, the panel noted the worker’s concern that they may need to leave work to address their medical condition, but we find that this is speculative at present. As such, we are satisfied that, at this time, the evidence does not indicate that requiring the worker to repay the overpayment amount would cause the worker financial hardship. The panel is satisfied that none of the circumstances when overpayment will not be pursued, as detailed in the Policy, are applicable here.

Based on the evidence, and on the standard of a balance of probabilities, we are satisfied that the worker is responsible for repayment of the overpayment. Therefore, the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of January, 2024