The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decisions that: they were overpaid benefits; the overpayment amount was correctly calculated; and they are responsible for repayment of the overpayment. A hearing to consider the worker's appeal took place on February 11, 2025 and continued June 2, 2025.

Issue

1. Has the worker been overpaid benefits? 

2. Is the overpayment amount correctly calculated? 

3. Is the worker responsible for repayment of the overpayment?

Decision

1. The WCB overpaid benefits to the worker. 

2. The overpayment amount is correctly calculated. 

3. The worker is not responsible for repayment of the overpayment.

Background

In June 2021, the worker reported a right elbow injury to the WCB, arising out of their repetitive job duties which began on March 16, 2021. The WCB denied the claim initially, but the Appeal Commission accepted the claim, as detailed in Decision 68/22, dated June 16, 2022. After that decision, the WCB contacted the employer on June 22, 2022 for information about the worker's time loss and wages paid between June 14, 2021 and July 26, 2021. On June 28, 2022, the employer advised that it paid the worker for a partial day on June 14, 2021, the worker was on sick leave from June 15, 2021 to June 22, 2021 and no time was recorded for the worker for July 2 - 15, 2021. On June 29, 2022, the employer advised the WCB that the worker was away sick from June 23, 2021 to July 15, 2021 and had depleted their sick leave credits. Based on this information, the WCB advised the employer that full wage loss benefits would be issued to the employer for June 15, 2021 to June 22, 2021 and full wage loss benefits would be paid to the worker for June 23, 2021 to July 15, 2021. The employer provided further information on June 30, 2022 indicating the worker's regular working hours were 5.5 hours daily on weekdays only. On July 7, 2022, after the employer confirmed the worker was away on unpaid sick leave from July 15 - 26, 2021, the WCB confirmed to the employer that it would issue full wage loss benefits to the worker for July 16 - 26, 2021. The employer later confirmed the worker returned to work on July 27, 2021 and continued to work until they took paid sick leave from December 4 - 14, 2021, and then, leave without pay.

On July 6, 2022, the WCB issued a cheque reimbursing the employer for wage loss benefits paid directly to the worker, in the amount of $356.47 for June 15-22, 2021 and paid wage loss benefits to the worker directly in the amount of $1010.00 for June 23, - July 15, 2021. On July 7, 2022, the WCB paid wage loss benefits to the worker for July 16- 26, 2021, in the amount of $415.88.

On September 8, 2022, the WCB advised the worker that it determined they were no longer entitled to benefits in relation to the compensable injury. The worker requested Review Office reconsider this decision, and on November 18, 2022, Review Office confirmed the decision that the worker is not entitled to further benefits. On November 23, 2022, the worker requested a copy of the WCB claim file and submitted an appeal of the Review Office decision to the Appeal Commission.

On November 29, 2022, the worker contacted the WCB to advise that they were not paid the correct amount of wage loss benefits as the information provided by the employer as to their hours worked beginning June 7, 2021 was not correct. The worker noted they realized this discrepancy upon reviewing the claim file. On November 30, 2022, the WCB case manager provided WCB database printouts providing payment details to the worker in relation to the wage loss paid in July 2022 and advised the worker to follow up with the employer directly as to the concerns about sick time and statutory holiday pay. The same day, the worker advised that their payroll records from the employer indicated the worker was underpaid during this period. On December 1, 2022, the WCB advised it would undertake a further review of the claim, seeking further information from the employer. On January 13, 2023, a WCB payment assessor noted a discrepancy as to when the worker's sick time credits were depleted, resulting in an overpayment of wage loss benefits to the worker for June 23 - July 26, 2021. The WCB put collection of the overpayment on hold while it conducted an audit of the worker’s time loss and wages.

On May 5, 2023, the Appeal Commission, in Decision No 53/23, determined the worker was entitled to further medical aid benefits but was not entitled to further wage loss benefits.

On May 16, 2023, the WCB wrote to the worker outlining the "final" overpayment calculations resulting in overpayment of $977.01 and explaining the mechanism of wage loss benefit payment with self-insured employers, such as their employer. Between December 2022 and August 2023, the worker, their union representative, the employer and the WCB reviewed and recalculated the worker's wage loss benefit entitlement multiple times.

On August 1, 2023, the worker requested Review Office reconsider the WCB’s decision on the overpayment. After further information was exchanged between the worker, the employer and the WCB, the WCB advised the worker by letter dated September 11, 2023 of a revised amount of overpayment. In a letter dated September 21, 2023, the WCB outlined the calculations that established the overpayment amount and advised the worker they were responsible to repay the overpayment amount of $1059.82. The worker provided further information to the WCB on September 4, 2023 and September 27, 2023, noting their disagreement with the employer and WCB calculations of their wage loss. The employer’s representative provided a submission in support of the WCB’s decision to Review Office of November 10, 2023. On November 24, 2023, Review Office determined the worker was overpaid, the overpayment amount was correct, and the worker was responsible for the overpayment.

Review Office, on noting the worker responded to the employer’s submission after the deadline, allowed the worker to provide a further request for reconsideration based on their November 23, 2023 submission. In that submission, the worker provided a chronology of their return to work beginning in March 2021 until December 2021, noting the overpayment arose between them and the employer, and that the employer used funds provided by the WCB under the self-insured employers’ policy to repay a portion of that overpayment on their behalf. The worker disagreed with the employer using those funds and noted they should have been paid those funds. On January 5, 2024, the worker provided an email from their union representative confirming the employer applied the WCB’s sick time reimbursement towards the worker’s overpayment and the worker did not authorize such payment. The employer’s representative provided a further submission on January 29, 2024 and on February 7, 2024, the worker provided a response. On February 21, 2024, Review Office again determined an overpayment occurred, the overpayment amount was correct, and the worker was responsible to repay the overpayment.

The worker’s representative appealed to the Appeal Commission and a hearing took place. After the hearing, the appeal panel requested further information, which was provided to the interested parties for comment before the appeal panel met again on October 8, 2025, to discuss the appeal and render its decision.

Reasons

Applicable Legislation and Policy

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 Act in force at the time of the accident are applicable.

The Act provides in s 4(1) that when a worker is injured by an accident arising out of and in the course of employment, they are entitled to compensation for their loss of earnings resulting from that accident. Section 4(2) sets out that wage loss benefits are payable for an injured worker’s loss of earning capacity resulting from a workplace 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 in s 109.2 that an overpayment of compensation, which is an amount that the WCB determines is more than the amount a person is entitled to, may be recovered from the recipient as a debt due to the WCB.

The WCB established Policy 35.40.50, Overpayment of Benefits (the “Overpayment Policy”) to outline when the WCB will recover overpayments from an injured worker. The Policy sets out that while the WCB strives to prevent overpayments of benefits, payment of benefits in as timely a manner as possible means that some overpayments will inevitably occur. The Policy provides, in part that the WCB will pursue recovery of overpayments when "The overpayment is a result of an administrative error, and the injured worked was notified 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 Administrative Guidelines to WCB Policy 35.40.50, Overpayment of Benefits provide in part that administrative errors will be collected if the worker is notified of the error within 30 days of the overpayment but administrative errors more than 30 days old will only be pursued if the error could or should have been obvious to the worker. The Administrative Guidelines define administrative errors as including any errors made in calculating the amount payable relating to the entitlement decision, including incorrect information for wages such as rate of pay, hours worked, shift premium, vacation or overtime pay, 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 appeared in the hearing represented by a worker advisor. The worker's representative made oral submissions to the panel and relied upon written submissions provided in advance of the hearing and in response to the additional materials obtained by the panel following the hearing.

The worker's position, as outlined by their representative is that there is an overpayment of benefits by the WCB to the worker, that the amount of that overpayment is not correctly calculated, and that the worker should not be required to repay the overpayment. The worker advisor confirmed that the worker concedes the first question; that is, the worker agrees that there is an overpayment.

Further, the worker advisor submitted that the amount of the overpayment is not correct as it does not address the remaining unresolved question of 116 hours for which the WCB reimbursed the employer, but the employer did not provide to the worker. In relation to the question of repayment, the worker advisor noted that the WCB failed to advise the worker of the administrative error resulting in the overpayment within 30 days of that error, and as such, the WCB can only recover the repayment if it determines the worker should have been aware of the overpayment.

Finally, the worker advisor submitted that the circumstances of this overpayment, where the WCB made wage loss benefit payments more than one year after the worker's time loss, in the context of a complex payment and reimbursement process related to the employer's self-insured status, and incorrect information repeatedly provided by the employer to the WCB in relation to the worker's hours and available sick leave credits, it cannot be established that the worker should have known about the overpayment. For this reason, the worker's position is that they should not be required to repay the overpayment.

Employer's Position

The employer was represented in the hearing by a workers compensation coordinator. The employer's representative made oral submissions to the panel and relied upon written submissions provided in advance of the hearing, and in response to the additional materials obtained by the panel following the hearing.

The employer's position, as outlined by their representative, is that the worker's appeal should be denied in whole. The employer's representative made no submission as to the first question in the appeal, based on the worker's position in respect of that question, but indicated that they support and agree with the decision of Review Office.

In respect of the second question, the employer's position is that the evidence confirms that the overpayment amount is correctly calculated, noting the comprehensive efforts undertaken by the WCB to recalculate the worker's benefit entitlement to ensure that the amount is correct.

Further, the employer's position is that the worker should be required to repay the overpayment amount as they should have known they received benefits from the WCB in relation to a period when they were already paid for their sick leave by the employer. The employer's representative noted that the WCB payment description information provided to the worker when they received benefits in July 2021 supports this position.

Analysis

While there are three questions under appeal, in the hearing, the worker's representative conceded the first question and acknowledged that the worker was overpaid benefits in relation to this claim. The employer does not dispute this. As such, the panel accepts that there was an overpayment of wage loss benefits to the worker.

The second question on appeal is whether the amount of the overpayment, being $1059.82, is correctly calculated. The worker's representative submitted that the amount is not correctly calculated but was not able to provide evidence or point to any specific error in support of this position. In the hearing, the representative stated: "As to whether or not the overpayment amount has been correctly calculated, we leave this open for the panel to decide." On questioning by the panel, the worker's representative referenced an email exchange between the WCB and the worker's union representative from September 29, 2023, regarding 116 hours of sick time credits which the worker stated the employer owed them. The file evidence indicates this concern was raised and discussed in the meeting of September 25, 2023 between the worker, their union representative, and the WCB, at which time the union representative confirmed that the worker had an overpayment issue with the employer unrelated to the claim. The WCB indicated that this may be an issue that the worker should pursue with the employer, and the union representative confirmed that how the employer applies reimbursement payments is out of the WCB's control. The panel further noted that the WCB confirmed in that meeting that "…we have done our due diligence with reviewing and confirming details with the employer. Based on the information we have at this time, the review is correct, therefore, this would be our last communication on the topic." The worker reached out to the WCB with further questions on September 27, 2023 indicating further follow up was required regarding 116 hours which they believe was not paid to them, and the WCB responded on September 29, 2023 indicating there was nothing further for the WCB to review or request from the employer.

It appears that while the worker's representative concedes there is an overpayment, the worker continues to argue that the employer has not fully compensated the worker in relation to the sick leave credits for which the WCB has reimbursed the employer. As noted in the notes of the September 25, 2023 meeting and subsequent exchanges between the worker and the WCB, we find that this does not relate to the WCB's calculation of the overpayment but is an issue arising between the worker and the employer, and as such, it is outside the jurisdiction of this panel to adjudicate. In the absence of any evidence of a specific error in the calculation of the amount of the overpayment and considering the contents of the detailed payment breakdowns and calculations provided to the worker by the WCB, the panel is satisfied that there are no errors in the calculation of the overpayment amount. Based on the evidence before the panel, and on the standard of a balance of probabilities, we find that the overpayment amount is correctly calculated. The worker's appeal on this question is denied.

The third question in this appeal is whether the worker is required to repay the overpayment amount. As detailed in the Overpayment Policy and provided in the Act, an overpayment to a worker is a debt owing to the WCB and generally, the WCB will seek to recover such debts. The Overpayment Policy outlines both the circumstances when the WCB will try to recover overpayments and when it will not try to do so. The Policy clearly sets out that the WCB will pursue recovery of an overpayment that results from an administrative error if the injured worker was notified within 30 days of it occurring. The Overpayment Policy does not define the term, administrative errors, but the Administrative Guidelines to the Policy do set out examples of administrative errors which include "…any errors made in calculating the amount payable relating to the entitlement decision. This includes… incorrect information for wages such as rate of pay, hours worked, shift premium, vacation or overtime pay…" and includes incorrect information provided by the employer and incorrect use of available information provided by the worker or employer.

Having considered the evidence as to how the overpayment to the worker occurred and applying the provisions of the Policy and the Administrative Guidelines, the panel is satisfied that the overpayment to the worker in July 2022 is the result of an administrative error. Further, the panel finds, based on the contents of the WCB claim file, that this error occurred when the overpayment amounts were issued to the worker, being in this case, on July 6 and 7, 2022 when the WCB issued wage loss benefits to the worker and reimbursed the employer for benefits provided until the worker's sick leave entitlement was depleted.

The panel noted the evidence that it was not until January 13, 2023, that the WCB first advised the worker that there had been an overpayment of benefits due to incorrect information provided by the employer to the WCB about when the worker's sick leave credits were depleted. As such, more than 30 days passed from the date of the WCB's administrative error to the date that the worker was first notified that an error was made.

The panel noted that the Overpayment Policy also provides that the WCB has discretion to recover overpayment due to an administrative error even if the worker is advised of the error more than 30 days after the error occurred, if the WCB determines the worker should have been aware of the error. The panel noted that the Administrative Guidelines to the Overpayment Policy reference the requirement that the worker could or should have been aware; however, the Policy itself outlines that the WCB must only determine the worker should have been aware. We note there is a conflict or discrepancy between the provisions of the Policy and the Administrative Guidelines in that the threshold for repayment is lower in the Guidelines (should or could) than in the Policy (should). The panel is bound to apply the Policy and is not bound by the Administrative Guidelines.

The panel therefore considered whether the worker should have been aware of the administrative error before they were notified of it. We considered that the worker's WCB wage loss entitlement was not initially in issue as the WCB did not accept the worker's claim until June 2022. As a result, when the employer initially paid wages and sick leave benefits to the worker for the period from mid-June through July 2021, the worker was not receiving any other benefit payments. After the Appeal Commission decision in June 2022, the WCB considered the question of the worker's wage loss entitlement, and by the time that payments were made to the worker on July 6 and 7, 2022, more than one year had passed from the time that those payments related to.

The question is further complicated by the fact that the employer in this claim is self-insured and by agreement between the employer and the WCB, the WCB calculated the worker's wage loss entitlement and pays the employer who then pays the worker the wage loss owing by the WCB plus a top-up. The top-up amount is deducted from the worker's sick leave entitlement until that is depleted, at which point the WCB ceases to make payments to the employer and instead provides the wage loss benefits, without top up, to the worker directly. As noted above, this resulted in payments to both the employer and the worker in July 2022 in relation to the worker's wage loss entitlement. The file evidence indicates that despite the WCB attempting to explain this to the worker through the reconciliation discussions in 2023, the worker did not understand how this applied to their circumstances.

A further complication in this case is that the employer, on multiple occasions, provided information to the WCB as to the worker's wages, hours and sick leave credits that was inaccurate or incomplete, resulting in errors in calculation by the WCB in relying on that information. There is evidence that the employer provided numerous corrections to the information provided to the WCB. The panel does not attribute any negative intent to the employer in this regard but finds that the fact of these errors made it more challenging for the WCB to determine the worker's wage loss entitlement.

The panel also noted that neither the WCB nor the employer were aware of any error in the calculations or payments provided to the worker until after the worker raised a concern, in November 2022, that they were underpaid due to a discrepancy related to their sick leave credits. But for the worker raising the question at all, it appears unlikely the WCB would have reviewed the worker's benefit payments. Thereafter, the amount of the overpayment was calculated and recalculated multiple times, with results communicated to the worker on January 11, 2023, May 16, 2023, September 11, 2023, September 12, 2023, September 20, 2023 and September 21, 2023. The calculations involved discussions, meetings and emails among WCB staff, the worker, their union representative, and employer representatives. The degree of complexity and number of individuals involved in determining and finalizing these calculations supports a finding that this overpayment was not obvious, nor easily discoverable by someone who did not work within the WCB or employer payroll system. Further, the worker's own statements throughout do not indicate that they were attempting to secure more than they were entitled to from the WCB, but rather trying to ensure they received as much as they were entitled to receive in wage loss benefits.

In sum, the panel finds that these circumstance were uniquely and particularly complex with the retroactivity of the calculations and payment, the incorrect and incomplete information provided by the employer, the worker's misapprehension that they were underpaid, the worker's departure from the employment before the payments were made, the additional confounding factor of the employer's self-insurance and the demonstrated difficulties in ultimately determining the amount of the overpayment. While the panel generally supports repayment of overpayment of benefits, in these circumstances, we find that it is not reasonable to determine that this worker "should have been aware of the error" and as such we find that the WCB ought not to have exercised its discretion under the Policy to pursue this overpayment.

Based on the evidence before the panel and applying the standard of a balance of probabilities, we are satisfied that in the totality of these circumstances, the worker should not have been aware of the overpayment and as such, the worker is not responsible for repayment of the overpayment amount. The worker's appeal on this question is granted.

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 23rd day of October, 2025