Decision #106/25 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They were overpaid wage loss benefits; and
2. They are responsible for repayment of the overpayment.
A hearing was held on October 6, 2025 to consider the worker's appeal.
Issue
1. Whether or not the worker has been overpaid wage loss benefits; and
2. Whether or not the worker is responsible for repayment of the overpayment.
Decision
1. The worker has been overpaid wage loss benefits; and
2. The panel refers this issue back to the WCB for review of undue hardship.
Background
The worker has an accepted WCB claim for an injury to their left ankle that occurred at work on February 24, 2020, when they slipped on a stair on their way out of a trailer. Medical treatment was sought and the worker was later diagnosed with a non-displaced posterior malleolus fracture of their left ankle. A cast was applied and it was recommended that the worker remain off work.
In a discussion with the WCB on February 27, 2020, the worker confirmed the mechanism of injury and advised they had been placed off work until March 10, 2020. The worker also advised the WCB they had concurrent self-employment. At that time, the WCB advised the worker that their claim was accepted and indicated that the worker should advise the WCB if there was any change in their status.
The worker attended for regular medical attention, including physiotherapy and by June 5, 2020, the worker’s treating physician indicated the worker could return to their regular duties with the exception of no climbing ladders. The WCB spoke with the worker on the same date who confirmed they would be returning to work on June 8, 2020, and the WCB advised they would be providing wage loss benefits to June 7, 2020. A further conversation took place on June 16, 2020, where the worker advised their return to work was going well and that they had returned to work part time on May 18, 2020. The WCB gathered further information from the employer and on June 16, 2020, determined the worker had been overpaid. It was noted the worker had not yet cashed the cheque for their wage loss benefits for the period of June 5, 2020 to June 7, 2020. On June 22, 2020, the worker advised the WCB that they would return the cheque uncashed.
On July 10, 2020, the WCB advised the worker that they had been overpaid wage loss benefits as they had returned to work part time on May 18, 2020, and provided the worker with a worksheet showing the calculated overpayment. The worker was also advised they were required to repay the overpayment.
The worker requested reconsideration of the WCB’s decision regarding the overpayment to the Review Office on December 1, 2022. In their submission, the worker noted their belief their return to part time work in May 2020 was unpaid and listed several personal issues that occurred since that time, which left them unable to repay the overpayment. On January 12, 2023, the Review Office contacted the employer and requested specific information regarding the dates the worker worked between February 25, 2020 and June 7, 2020 and the wages they were paid, which information the employer provided on January 16, 2023 and a copy was provided to the worker on the same date. The worker provided a response to the information on January 30, 2023.
The Review Office determined on February 2, 2023, the worker was overpaid wage loss benefits and was required to repay the overpayment. The Review Office found the file evidence clearly indicated the worker was advised both verbally and in writing, to advise the WCB of any change in status, including when they returned to work, and on June 2, 2020, the worker had advised the WCB they had no other income. However, on June 16, 2020, the worker further advised they returned to work part time on May 18, 2020, and had been paid full wage loss benefits by the WCB to June 7, 2020, which resulted in overpayment. The Review Office requested further information from the employer and confirmed the worker was paid for 9 days on April 9, 2020, and should have been aware at that time they had been overpaid. As such, the Review Office found that the worker was responsible for repayment of the overpayment.
The worker filed an appeal with the Appeal Commission on May 6, 2025, 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 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 Act sets out that where a person receives an amount in excess of that which they are entitled, 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).
The Policy also 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:
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.
Worker’s Position
The worker represented themselves at the hearing and had a friend in attendance for support. The worker made an oral submission to the panel and also relied on their past written submission to the Review Office. The worker offered testimony by way of answering questions posed by members of the appeal panel.
Issue 1:
The worker acknowledged that an error was made and there had been an overpayment of wage loss benefits to which they were not entitled. The worker indicated at the hearing that they were not disputing the calculation or the amount of the overpayment.
Issue 2:
The worker’s position is that they should not be responsible for repaying the overpayment. The worker submits that the overpayment was not their fault.
The worker further submits that they experienced several personal issues, including medical issues for themselves and their family members and the loss of family members.
The worker’s evidence is that they were unable to work as they were diagnosed with an unrelated medical issue, which prevented them from being able to get a vaccine required by their employer. The worker’s evidence was that they were unable to work for approximately 12 months as a result. This impacted their financial wellbeing and caused them much stress.
The worker’s evidence is that they advised the WCB of their financial difficulties and indicated that they did not know how they would make the payment. The worker states that the WCB worker indicated that they would look into the issue of hardship, but that nothing came of their conversation.
The worker is seeking a determination that there will be no recovery of the overpayment.
Employer’s Position
The employer did not participate in the appeal.
Analysis
Issue 1:
The question before the panel is whether the worker, in fact, had a loss of earning capacity during the period for which the WCB paid wage loss benefits to June 7, 2020.
The worker acknowledged the overpayment at the hearing and the evidence before the panel confirms the overpayment to the worker.
On the balance of probabilities, the panel finds that the worker experienced partial earning capacity beginning May 18, 2020. Wage loss benefits paid after that date did not reflect the worker’s actual earnings and therefore the payments exceeded what the worker was entitled to under the Act.
The worker’s appeal is denied.
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 a finding, for the reasons that follow.
The overpayment issue must be considered in light of the provisions of the Act and the relevant WCB policy. Under the Overpayment Policy, the WCB may pursue recovery of overpayments when: (i) the overpayment results from an administrative error and the worker was notified within 30 days, or (ii) the worker reasonably should have been aware of the error. Recovery may nevertheless be waived in certain circumstances, including where repayment would impose “undue hardship.”
In this case, the worker was informed by the WCB that they must advise them of any change in employment status or income. The evidence is that the worker did not disclose their part-time work and was paid some wages and was in receipt of earnings well before June 8, 2020.
The evidence before the panel does not support that the worker believed in good faith that they were entitled to full wage loss benefits for the entire period up to June 7, 2020. In fact, at the hearing the worker acknowledged that an overpayment occurred, and did not dispute the calculation or the amount.
On the balance of probabilities, the panel finds that the worker should reasonably have been aware that they were receiving wage loss benefits in excess of what they were entitled to, given their return to work and receipt of wages.
While the worker’s evidence is that the overpayment is not their fault, the overpayment remains recoverable where the recipient should have recognized the overpayment, and no automatic exemption applies simply because the overpayment was inadvertent.
The panel has reviewed the Overpayment Policy and notes that it provides an avenue for relief, specifically recovery of an overpayment may be waived if repayment would cause undue hardship or for other appropriate reasons.
In this matter, the worker has raised financial hardship as a ground for relief. The evidence is that this was raised by the worker but not addressed by the WCB. While the panel finds that the overpayment is properly recoverable in principle (i.e., the worker is responsible), the issue of hardship, or other mitigating factors, lies within the discretion of the WCB under its Overpayment Policy. As the WCB has not yet made a hardship determination in this file (or at least no evidence of such a determination was before the panel), the panel cannot, on the evidence before it, conclude that the overpayment should be waived in whole or in part. The panel therefore declines to grant relief under the policy.
The panel concludes that on a balance of probabilities, that the worker was overpaid wage loss benefits and that an assessment of possible financial hardship has yet been made under the Overpayment Policy, and therefore the panel refers the matter back to the WCB for a determination as to whether recovery should be waived — in whole or in part — on the basis of hardship or other relevant factors.
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 5th day of December, 2025