Decision #67/24 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They had been overpaid wage loss benefits in the amount of $21,085.43; and
2. They are responsible to repay the overpayment.
A hearing was held on May 15, 2024 to consider the worker's appeal.
Issue
1. Whether or not the worker has been overpaid wage loss benefits in the amount of $21,085.43; and
2. Whether or the worker is responsible to repay the overpayment.
Decision
1. The worker has been overpaid wage loss benefits in the amount of $21,085.43; and
2. The panel has determined that it is premature to decide whether the worker is responsible to repay the overpayment as the WCB has not considered whether the worker will experience undue hardship by the repayment.
Background
The worker has an accepted WCB claim for left hand, back and psychological injuries that occurred as the result of an incident at work on May 14, 2021 while they were restraining a resident. The worker was placed off work effective May 15, 2021 and was paid time loss in the form of their sick time by their employer. On August 25, 2021, the employer advised the WCB the worker’s sick time was running out by September 7, 2021 and the WCB paid the worker starting on September 8, 2021. The worker acknowledged they would be paid directly by the WCB on August 30, 2021.
With the support of their treating healthcare providers, the worker began a graduated return to work on November 8, 2021 on modified duties. A report from the worker’s treating psychologist dated December 16, 2021 noted the worker had returned to their full duties as of December 15, 2021.
On June 22, 2022, the worker contacted the WCB to advise they had missed some time from work due to an incident that had occurred at work and they were experiencing an increase in their psychological symptoms including flashbacks and inability to focus or concentrate. They related their symptoms to their May 2021 workplace accident. The worker was placed off work by their treating family physician until June 17, 2022. The worker continued to miss work and sick notes were provided by their treating physician. The WCB requested medical information to support the worker’s time loss and on October 11, 2022, accepted the worker suffered a recurrence of their compensable injuries. Wage loss benefits were approved for a partial payment for June 5, 2022, full wage loss benefits for June 6, 2022 to June 14, 2022 and August 12, 2022 and August 13, 2022 and a partial payment for August 14, 2022. It was noted those payments were being made by the employer directly to the worker out of their sick time, with the WCB picking up the worker’s wage loss benefits for August 15, 2022 to October 12, 2022.
The employer’s payroll department contacted the WCB on December 29, 2022 to advise the worker’s sick time would run out as of January 9, 2023 and the WCB would be required to pay the worker directly as of January 10, 2023. On the same date, the WCB contacted the worker and advised there had been an overpayment on their claim as the employer advised they had been paying the worker directly since August 2022 as had the WCB. As well, the employer advised the WCB the worker had been advised by them in September 2022 they would be paid directly by the employer, a copy of the September 2022 email between the worker and the employer was placed to the worker’s file on December 29, 2022. On January 17, 2023, the worker contacted the WCB to advise they were aware of the overpayment and requested that 50% of their wage loss benefits be deducted to repay the overpayment, calculated by the WCB to be $21,085.43. On February 8, 2023, the WCB provided the worker with a formal decision letter, setting out the overpayment amount of $21,085.43 and noting the worker’s recovery plan of 50% of their weekly wage loss benefits to be applied to the overpayment. On May 10, 2023, a request for a reduction in the weekly amount being applied to the overpayment was received by the WCB from the worker’s representative, which request was granted.
The worker requested reconsideration of the WCB’s decision they were overpaid $21,085.43 and they are required to repay the overpayment to Review Office on August 8, 2023. The worker noted their wage payments had not been consistent between the employer and the WCB and due to their ongoing psychological symptoms, they felt overwhelmed when dealing with their claim, in particular when they were advised of the overpayment. The worker noted they initially agreed to a repayment schedule of 50% that placed them in a difficult financial situation and believed the repayment expectations of the WCB were not reasonable and were affecting their recovery. On September 22, 2023, the employer provided a submission in support of the WCB’s decision, with the worker providing a response on October 9, 2023. Review Office determined on October 17, 2023, the worker was overpaid $21,085.43 and is responsible to repay the overpayment. With respect to the overpayment, Review Office acknowledged the worker’s comment that miscommunication between the parties resulted in the worker being overpaid, however, found that the worker was overpaid. Review Office further found the worker had been made aware by the employer in September 2022, they were being paid by the employer through their paid sick time, as evidenced by the email provided to the WCB in December 2022. Further, Review Office found the evidence on file indicated the worker’s WCB case manager spoke with the worker and advised they would be paid directly by the WCB for their ongoing time loss on October 13, 2022. As such, Review Office determined the worker was aware of the overpayment and was responsible to repay the overpayment.
The worker’s representative filed an appeal with the Appeal Commission on November 10, 2023 and a 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 thereto and the policies put in place by 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 or until the worker attains 65 years of age.
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 35.40.50, Overpayment of Benefits ("the Overpayment Policy"), deals with recovery of overpayments of benefits. The Overpayment 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:
The WCB will pursue recovery of overpayments when:
• An injured worker has received duplicate benefits paid from another source for the same injury (e.g., CPP disability benefits);
• There is evidence that the injured worker engaged in fraud or deliberate misrepresentation, withheld key information, or engaged in other actions which affected benefit entitlements; or
• The overpayment is a result of an administrative error, and the injured worker was notified of the error within 30 days of it occurring (the WCB may still choose to pursue the overpayment after the 30-day period if it is determined that the injured worker should have been aware of the error).
The Overpayment Policy also provides that, in some circumstances, the WCB may decide not to pursue an overpayment, even when it ordinarily would. Examples include: when it is not cost-effective to pursue the recoverable amount; when recovery of the overpayment, in whole or in part, would create financial hardship for the injured worker or their dependant; and when the recipient has died and there are insufficient funds in the estate to cover the overpayment.
Worker’s Position
The worker was present at the hearing with the support of their spouse. The spouse acted as the worker’s representative and provided a written submission and made a presentation at the hearing on the worker’s behalf. The worker and spouse responded to questions posed by members of the panel.
The worker’s position is that due to their PTSD they had difficulties with concentration, memory and decision making. The worker stated that they did not notice the overpayment and were not aware of it until December 29, 2022, when the WCB made the worker aware of the issue. The worker states that the amount of pay they were receiving was not consistent after the claim commenced, which caused confusion. The worker also states they were not able to deal with their finances and the correspondence regarding the WCB claim, while also dealing with the overwhelming and debilitating symptoms caused by the traumatic events they were exposed to at work.
The worker states that they have paid back much of the amount owing and, in the circumstances, feel it is unreasonable for the WCB to seek repayment of the total overpayment.
Employer’s Position
The employer was represented by their WCB Coordinator. The employer made an oral submission at the hearing and answered questions posed by members of the panel.
The employer's position is that there is an overpayment of $21,085.43, and states that the worker has agreed that there was an overpayment in this amount. The employer points to email correspondence on file between the WCB and the worker which sets out that the worker was aware that WCB was paying for the time they were missing from work. The worker was also aware that the employer placed them back on payroll and therefore the worker should have been aware that they were being overpaid.
The employer is seeking that the Review Office decision be upheld.
Analysis
Issue 1: Whether or not the worker has been overpaid wage loss benefits in the amount of $21,085.43
A review of the file confirms that the worker was overpaid from August 14, 2022 until December 30, 2022. Both the employer and the WCB were paying the worker during this period. This resulted in an overpayment of $21,085.43.
The panel notes that the worker advised verbally and confirmed in an email to the WCB (dated October 9, 2023) that they were not disputing that they were overpaid.
During the hearing the worker again agreed that they had been overpaid wage loss benefits for the period in question and stated that they were not disputing the amount of the overpayment.
The panel therefore finds, on a balance of probabilities, that the worker has been overpaid wage loss benefits in the amount of $21,085.43. The appeal is denied in this regard.
Issue 2: Whether or the worker is responsible to repay the overpayment.
The Overpayment Policy outlines that there are special circumstances in which the board may decide not to pursue overpayment. This includes when recovery of the overpayment, in whole or in part, would create financial hardship for the injured worker or their dependant. The Administrative Guidelines to the Policy set out a list of factors that the WCB will consider in determining whether the repayment would create financial hardship (or has created financial hardship to the extent that it has been repaid in part).
The panel is not satisfied that the WCB requested any of the information required by the Administrative Guidelines to the Policy, such as documents from the worker regarding the worker’s assets, debts or expenses, etc. or attempted to properly ascertain whether the worker would suffer financial hardship prior to attempting to recover the overpayment.
The evidence before the panel is that the worker in an email dated October 9, 2023 referenced that the repayment would be “incredibly hard on my family”, and requested information regarding repayment options in January 2023. Later on, the worker made a request to skip one of the repayment dates, due to issues with finances and referenced their financial situation was causing them stress. The worker’s spouse also sent an email in September 2023 seeking a pause in the repayment amount and expressed concern to the WCB of their ability to make payments and referenced the hardship the repayments were creating.
The panel is of the view that prior to making repayment arrangements the WCB ought to have confirmed the repayment would not have caused this worker hardship. If this was not done prior to repayments commencing, then at least once the WCB was notified of the worker’s financial concerns, this ought to have prompted the WCB to determine whether the repayment was causing financial hardship for the worker.
Therefore, the panel finds that a determination whether the worker is responsible to repay the overpayment is premature as the WCB has not considered whether the worker will experience undue hardship by the repayment. The panel will return the file to Compensation Services to appropriately consider the requirements under the Overpayment Policy and its Administrative Guidelines.
Panel Members
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 10th day of July, 2024