The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. They are not entitled to wage loss benefits after September 20, 2022; and

2. They are responsible for repayment of the overpayment.

A videoconference hearing was held on June 3, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after September 20, 2022; and 

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

Decision

1. The worker is entitled to wage loss benefits after September 20, 2022; and 

2. The worker is responsible for repayment of the overpayment.

Background

The worker has an accepted WCB claim for a lumbar strain sustained in an accident at work on June 24, 2022. The worker noted they finished their shift that day, but their helper did the work as they were in too much pain. The worker attended for medical treatment the following day, on June 25, 2022, at a local emergency department reporting lower back pain following a fall at work the previous day. The worker advised the triage nurse that they had a previous history of hernias. After examining the worker, the emergency physician noted no swelling, redness or bruising of the worker’s spine and back and good range of motion with straight leg raise testing causing mild tenderness in the lower back. The worker was provided with a sick note for June 25, 2022 and June 26, 2022, and was advised to avoid heavy lifting and gentle exercise was recommended. The worker attended an initial assessment with their chiropractor on June 27, 2022, reporting lower back pain due to an incident at work on June 24, 2022, with no mention of abdominal or other complaints. The chiropractor found decreased range of motion due to low back pain and recommended the worker rest and remain off work until June 30, 2022. At a follow-up appointment with the chiropractor, the worker was placed off work until July 8, 2022.

On July 18, 2022, the WCB accepted the worker’s claim and a WCB payment assessor calculated the worker’s short term average earnings to issue a wage loss payment on the same date.

At a follow-up chiropractic appointment on July 18, 2022, it was noted the worker had mild low back pain and was capable of light duties. It was further noted that the worker was able to stand up to six hours in an eight-hour workday, lift up to 10 pounds frequently and up to 20 pounds occasionally. A note provided with the report indicated a period of disability from July 18, 2022 to July 25, 2022. On July 19, 2022, the employer advised the WCB they could not accommodate the worker within those restrictions. Further restrictions were placed to the worker’s file on August 3, 2022, indicating the worker was able to work 40 hours per week, eight-hour days with no lifting greater than 50 pounds. A further sick note was provided on August 12, 2022, recommending the worker remain off work until September 5, 2022.

Due to the duration of the worker’s claim, the worker’s file was transferred to a WCB case manager on August 10, 2022. As the worker’s claim had exceeded 8 weeks, as part of their policy, the WCB contacted the worker on August 19, 2022, to advise their average earnings benefit rate would be reviewed after the first 12 weeks of payments to ensure they were receiving the correct rate. On August 25, 2022, in response to a request for further information from the WCB payment assessor, the employer provided approximate payroll information for the worker had the worker been able to work a scheduled work week. A Wage loss Calculation Report was calculated by the WCB payment assessor on August 31, 2022, who contacted the worker to advise their average weekly benefit rate had been changed based on the calculation to avoid the worker being further overpaid.

The worker’s file was reviewed by a WCB medical advisor on September 9, 2022. Based on the medical information on file, the advisor opined the worker’s diagnosis in relation to the June 24, 2022 workplace accident was a mild low back strain, with a natural history of improvement over a few days to a few weeks. The advisor noted the treating chiropractor’s progress notes indicated the worker was discharged from treatment on August 3, 2022, when they were noted to be feeling better with no significant findings. The WCB medical advisor further opined the worker’s current difficulties, reported in August 2022 and described as abdominal pain and pain with urination, were not medically accounted for in relation to the diagnosis of a low back strain. In addition, the advisor noted the file evidence indicated the worker reported not being able to help a coworker with moving an object due to having a hernia, which indicated the worker possibly had a pre-existing condition.

The WCB advised the worker by way of a formal decision letter on September 12, 2022, it had been determined they had recovered from the June 24, 2022 workplace accident and their entitlement to wage loss and medical aid benefits would end as of September 20, 2022. The WCB case manager requested the WCB payment assessor calculate the final wage loss payment for the worker. On September 15, 2022, the WCB payment assessor noted the worker’s schedule had been adjusted based on the worker’s actual rotation and information received from the employer as a result, the worker was in an overpayment. A letter detailing an overpayment recovery plan was sent to the worker on September 16, 2022. Also on September 16, 2022, the employer confirmed the worker was hired on a temporary basis and their term would have ended as of October 31, 2022, with their final pay day being November 4, 2022. It was noted by the employer the worker had been hired after the start of their current project and provided the WCB payment assessor with an estimate of the worker’s earnings had the worker not been hurt. On the same date, the WCB payment assessor advised the worker their last WCB wage loss payment had been calculated using the temporary average earnings based on the calculations provided by the employer.

On October 6, 2022, the worker requested reconsideration of the WCB’s decision they were overpaid, noting the belief their wage loss benefits had not been calculated correctly. As well, the worker noted disagreement with the decision to end their entitlement to wage loss benefits after September 20, 2022 as their treating health care providers supported they had not recovered from the workplace accident, still required work restrictions and were to be seen by a surgeon for further treatment. The worker provided copies of their income tax information for 2020 and 2021 with their submission. The Review Office determined on December 6, 2022, the worker was not entitled to further benefits after September 20, 2022, and was responsible for repayment of the overpayment. The Review Office accepted and agreed with the opinion of the WCB medical advisor the worker’s diagnosis related to the workplace accident was a mild low back strain, which they had recovered from, and their current difficulties were not related to the June 24, 2022 accident. With respect to the overpayment, Review Office noted the worker’s initial weekly benefit rate was calculated based on the worker’s gross earnings for a one-week period of June 18, 2022 to June 24, 2022. After receiving additional information from the employer including the worker’s regular earnings and work schedule, The Review Office noted the WCB calculated the worker’s interim average earnings, which placed the worker in an overpayment as that amount was less than the initial calculation. The Review Office further found that while the overpayment was the result of an administrative error and was not discovered until 44 days of wage loss benefits had been paid, which was in excess of the 30 days noted in the WCB’s policy. It was found that the worker would have been aware of the error and as such, the Review Office determined the worker was responsible for repayment.

The worker filed an appeal with the Appeal Commission on April 3, 2024, and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On October 24, 2024, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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.

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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from 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.

Subsection 39(2) of the Act states that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

The WCB has established a policy that addresses pre-existing conditions. Policy 44.10.20.10, entitled Pre-existing Conditions (the “Policy”) explains what a pre-existing condition is and also explains the principles governing payment of compensation when a worker's pre-existing condition impacts the severity of the workplace injury experienced by the worker or increases their recovery time, or alternatively, when the workplace injury worsens the worker's pre-existing condition.

The Act sets out that where a person receives an overpayment of compensation, the board may recover the overpayment from the person. The WCB has established a policy which sets out the framework for preventing, recovering and writing off overpayments. It is WCB Policy 35.40.50, Overpayment of Benefits (the "Overpayment Policy"). Part B.2. of the Overpayment Policy, relating to the recovery of overpayments, provides in part that:

The WCB will pursue recovery of overpayments when:

• 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).

Worker’s Position

The worker was self-represented at the hearing. The worker made an oral presentation and answered questions posed by members of the panel.

The position of the worker regarding their entitlement to wage loss benefits after September 20, 2022 is that they had not recovered from their workplace injury by September 20, 2022 and were unable to work.

The worker indicated that they were seeing a chiropractor following the injury and was advised by the chiropractor to see a physician. The worker states that the treating physician indicated that surgery would be required. The worker’s evidence is that they had not experienced pain of that nature prior to the workplace injury.

The worker’s position respecting the issue of overpayment was that the overpayment was the fault of the employer and that the panel should use their discretion to override the overpayment.

Employer’s Position

The employer did not participate in the hearing.

Analysis

Issue 1: The issue before the panel is whether or not the worker is entitled to wage loss benefits after September 20, 2022. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity beyond September 20, 2022 as a result of the June 24, 2022 workplace incident and injury. The panel is able to make that finding, for the reasons that follow.

The panel accepts that the worker had a physically demanding job. The worker was functional and performing their regular full-time duties in this physically demanding job prior to June 24, 2022. The panel notes that the worker’s evidence regarding their symptoms has been consistent since the date of the injury. The worker complained of pain in their groin, lower abdomen and back from lifting a pipe at work.

The panel has reviewed the chart notes from the treating physician which confirms that on August 10, 2022 the worker was still suffering from pain to their abdomen. The treating physician queried whether the issue could be a hernia and referred the worker to a surgeon. The worker was to be off work for one month.

The panel notes that the worker’s treating health care providers continued to provide treatment to the worker beyond September 20, 2022. The worker’s treating physician recommended the worker be off work from August 8, 2022 until September 5, 2022 and then recommended restrictions (as set out in a Functional Capabilities Form for the period of September 7, 2022 to October 7, 2022). A letter from the worker’s physician to the WCB dated August 19, 2022 indicates that the treating physician had no planned follow-up appointments with the worker as the worker was waiting to meet with a surgeon. The referral by the worker’s treating physician to a surgeon was made in early August 2022, however the initial appointment with the surgeon was not until late October 2022.

In the circumstances, and on a balance of probabilities, the panel finds that the worker had not recovered from the effects of the compensable injury as at September 20, 2022 and that they suffered a loss of earning capacity beyond that date as a result of their June 24, 2022 workplace incident and injury.

The panel therefore finds that the worker is entitled to wage loss benefits after September 20, 2022, and returns the file to the WCB for further adjudication.

Issue 2: The second 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 worker acknowledged that an error was made which resulted in the payment of benefits to which they were 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 for repaying that amount. The worker submits that the overpayment was not their fault.

The panel accepts that the overpayment was an error made by the WCB, however this does not alter the fact that the worker was not entitled to the funds that were paid to them. The matter of fault is not at issue and the panel accepts that the worker was not at fault or to blame for the calculation error that was made.

The panel notes that the guidelines to the Overpayment Policy provide that administrative errors more than 30 days old will only be pursued if the error could or should have been obvious to the worker. The worker has some responsibility to be aware of what they are actually being paid and the panel is satisfied that the worker could or should have known that the amount was incorrect, given that the calculation was based on incorrect hours. The WCB did not consider the time off the worker would have had between each rotation, instead the calculations were based on the worker working the entire month, which was not accurate. In the circumstances, the panel is satisfied that the worker could or should have known they were being overpaid.

Based on the above, the panel finds that the worker is required to repay the overpayment. The worker’s appeal, respecting the issue of repayment, is denied.

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 13th day of December, 2024