The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decisions that they were overpaid benefits of $4,990.10 and that they are required to pay back the overpayment. At a hearing on March 25, 2026, the appeal panel considered the worker's appeal.

Issue

1. Was the worker overpaid $4,990.10? 2. Is the worker required to pay back the overpayment?

Decision

1. The worker received a duplicate payment of $4,990.10 for the period of June 19 - July 30, 2023 which is an overpayment for that period. 

2. The worker is not required to pay back the overpayment.

Background

The WCB accepted the worker's claim for a right knee injury because of an accident at work on November 5, 2022. The WCB provided benefits to the worker, including wage loss and medical aid. During the worker's recovery from that injury, the WCB established a gradual return to work plan to begin on June 19, 2023 and end on July 30, 2023, and the worker was eligible for partial wage loss benefits until the plan ended and they returned to their full duties. On the worker's request for reconsideration, Review Office upheld the WCB’s decision that the gradual return to work plan was appropriate. The worker appealed the Review Office decision to the Appeal Commission and on January 31, 2025, an appeal panel determined, as set out in Decision No. 09/25, that the graduated return to work plan was not appropriate.

On February 4, 2025, the WCB claim manager requested a WCB payment assessor calculate and arrange to pay the worker full wage loss benefits for the period of June 19, 2023 to November 9, 2023, to implement the Appeal Commission's January 31, 2025 decision. On February 6, 2025, the assessor placed a memorandum to file noting the worker confirmed they did not receive payment from any other sources during that time and as the worker already received partial wage loss benefits from June 19, 2023 to July 30, 2023, the WCB would pay full wage loss benefits from July 31, 2023. The assessor placed their wage loss calculations to the file, noting the WCB owed the worker an additional amount of $4,990.10 for June 19 - July 30, 2023. The WCB paid the sum of $4,990.10 to the worker by electronic deposit on February 7, 2025 and on February 13, 2025, the worker asked the WCB case manager for an explanation of the benefits received. In response, the case manager advised the worker on February 14, 2025 that an explanation would be provided when finalized by the WCB payment assessor. On February 19, 2025, the payment assessor’s supervisor reviewed the payment assessor's calculations of the amount owing to the worker and noted the amount was correct. The same day, the WCB paid a further amount of $6,937.45 as wage loss benefits plus a shelter rebate to the work by electronic deposit.

On June 25, 2025, a WCB payment supervisor reviewed the worker’s file and requested that the payment assessor review payments made to the worker on February 7, 2025 and February 19, 2025, for the period of June 19 - July 30, 2023 as there may be an overpayment. On July 9, 2025, the WCB payment assessor placed a memorandum to the file noting that on February 7, 2025 and again on February 19, 2025, the WCB paid partial wage loss benefits for June 19, 2023 to July 30, 2023 to the worker, each time in the amount of $4,990.10. The same day, the WCB wrote to the worker advising they received an overpayment and that their file was referred for collection of that amount.

On September 24, 2025, the worker’s representative requested Review Office reconsider the WCB’s decision that they overpaid benefits to the worker and that the worker must repay the overpayment amount. The representative noted throughout the worker’s WCB claim, the direct deposit payments to the worker were in varying amounts, the worker received no explanation as to the details of those payments, and the WCB did not notify the worker of the WCB's error within 30 days of the overpayment.

On November 25, 2025, Review Office determined there was overpayment to the worker of $4,990.10 and the worker must repay the overpayment. Review Office found that due to an administrative error, the WCB paid wage loss benefits to the worker twice, in the amount of $4,990.10. With respect to the repayment, Review Office found the worker was aware or should have been aware of the error as they received copies of the WCB’s system generated statements that were mailed to them and received a direct deposit for the same amount twice.

The worker’s representative appealed to the Appeal Commission on December 24, 2025 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

In deciding this appeal, the panel must apply the provisions of The Workers Compensation Act (the “Act”), regulations made under the Act, and the policies established by the Workers Compensation Board. The Act provides in s 4(1) that a worker injured in an accident arising out of and in the course of their employment is entitled to compensation for their loss of earnings resulting from that accident. Section 4(2) sets out that wage loss benefits are payable for the 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, defined as an amount that the WCB determines exceeds the amount a person is entitled to, may be recovered as a debt due the WCB.

The WCB established Policy 22.00, Decision Making (the "Decision Making Policy") to outline procedure that WCB decision makers must follow when making decisions under the Act and the key legal principles and concepts that must be applied in such decision making. This policy confirms that the WCB relies upon an inquiry model of adjudication where the responsibility for gathering, assessing, and weighing evidence lies with the decision maker. The Decision Making Policy sets out that WCB decision makers must continue to seek evidence until they are satisfied there is sufficient evidence upon which to make a decision, and that workers and employers are responsible to cooperate with the decision maker's effort to gather evidence.

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. This policy sets out that while the WCB strives to prevent overpayments of benefits, some overpayments will inevitably occur. The Overpayment 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)." Further, the Overpayment Policy sets out that when the WCB decides to pursue recovery of an overpayment, they will notify the worker of the overpayment, confirm the details in writing and set up a recovery plan.

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 a written submission outlining the worker's position.

The worker's position is that the evidence does not establish that the WCB overpaid the worker in the amount of $4,990.10, noting the WCB only established that the worker was paid that amount twice, without considering the whole of the worker's wage loss benefit entitlement over the course of their claim. The worker advisor submitted that any overpayment amount should be determined based on the entirety of a claim rather than in respect of only a discrete period within that claim. As such, the worker advisor submitted the WCB failed to obtain sufficient evidence, as required under the Decision Making Policy, before deciding on the question of overpayment.

In respect of the question of repayment, the worker advisor submitted that because the worker was not notified of any overpayment, as determined by the WCB, within 30 days and as in the present circumstances, the WCB found that an overpayment occurred due to an administrative error, the Overpayment Policy does not require repayment and this is at the discretion of the WCB. In the worker's case, the evidence does not confirm that the worker should have been aware of an overpayment given that the payments in question were provided more than one year after the time of the loss of earning capacity and the WCB failed to provide the worker with any detailed explanation for its calculations of the payment amounts at the time of payment or upon the worker's later request. Further, the payment amounts were not consistent so that it was not obvious to the worker that they received duplicate payments. The WCB provided three payments to the worker in implementing the Appeal Commission's January 2025 decision, none of which included any explanatory documents. In fact, the WCB itself did not note any duplication of benefit payments until months after it provided those payments. In these circumstances, the panel should find that the worker could not have been aware of an error and that because the WCB discovered the error more than 30 days after making it in February 2025, the worker should not have to repay.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker's appeal arises out of the WCB decision that the worker received an overpayment of benefits in the amount of $4,990.10 and must repay that amount. As detailed in the reasons that follow, the panel concludes that the worker received duplicate wage loss benefits in the sum of $4,990.10 for the period of June 19 - July 30, 2023, which amounts to an overpayment of benefits in relation to that period but finds the worker should not have to repay the overpayment.

In respect of the first question, the panel considered whether there is evidence that the worker received wage loss benefits in excess of the amount to which they are entitled. There is evidence that on February 7, 2025 the WCB paid retroactive wage loss benefits to the worker for the period of June 19 - July 30, 2023, representing the calculated difference between the partial wage loss benefits paid in 2023 and the full wage loss benefits due the worker pursuant to the January 31, 2025 decision of the Appeal Commission. Further, on February 19, 2025, the WCB again paid retroactive wage loss benefits to the worker for the period of June 19 - July 30, 2023, combining that payment with a shelter rebate due to the worker. In the hearing, the worker acknowledged receiving these payments by electronic deposit to their account, and the worker advisor confirmed that this represented a duplicate payment of $4,990.10 for the earnings period from June 19 - July 30, 2023. However, the worker advisor also submitted that as the WCB did not undertake any global assessment of the total wage loss benefits due to the worker versus the total paid, the evidence does not establish that the worker owes the WCB a debt of $4,990.10 in relation to this claim. The panel agrees that there is no evidence the WCB undertook a global assessment of the wage loss benefits due versus the benefits paid in this claim and we make no findings in respect of the worker's overall entitlements in relation to this claim. However, we cannot ignore the evidence of a duplicate payment in relation to the specific period in question. Therefore, the panel is satisfied that for the period of June 19 - July 30, 2023, the worker received duplicate wage loss benefits in the sum of $4,990.10 from the WCB, which is an overpayment of benefits in relation to that period.

In considering the question of repayment, the panel noted that s 109.2 of the Act is permissive, rather than prescriptive in terms of the WCB's ability to recover an overpayment of compensation. The Act sets out that the WCB "may recover" such overpayment as a debt due to the board and does not state that the WCB must recover an overpayment. This is therefore a discretionary decision of the WCB. The Overpayment Policy provides guidance in terms of how the WCB will exercise that discretion in any given claim and sets out that when an overpayment results from an administrative error, if more than 30 days have passed from when the error occurred to when the WCB notified the worker of it, the WCB may choose to recover "…if it is determined that the injured worker should have been aware of the error."

The panel reviewed the evidence as to how and when the error occurred and how and when the WCB notified the worker of the error. The WCB claim file confirms that in July 2023, the WCB determined the worker's entitlement to partial wage loss benefits from June 19, 2023 based on their participation in gradual return to work plan, and that in August 2023, the WCB approved payment of partial wage loss benefits through July 30, 2023. Following the Appeal Commission decision of January 31, 2025, the WCB determined the worker was entitled to full wage loss benefits as of June 19, 2023 and on February 6, 2025, determined the worker should receive $4,990.10 as adjusted wage loss for June 19 - July 30, 2023. The WCB provided a payment to the worker in this amount by direct deposit on February 7, 2025 and on February 19, 2025, provided a further payment to the worker in the amount of $6,937.45. The claim file includes direct deposit statements, printed on October 17, 2025 at the request of Review Office, which confirm these payment amounts, and that the February 19, 2025 payment also included the sum of $1,947.35 as a Shelter Rebate. There is no evidence that the WCB provided any explanation to the worker as to the nature of the benefits provided on February 7, 2025 and February 19, 2025 despite the worker's February 13, 2025 request that the WCB provide an explanation of benefits. The panel noted that the WCB reviewed the worker's file on July 9, 2025 and determined that it made duplicate payments to the worker for June 19 - July 30, 2023, on February 7, 2025 and February 19, 2025, and found that this represented an overpayment for that period. The panel further noted that although the WCB wrote to the worker on July 9, 2025 advising that there was an overpayment of $4,990.10, the letter contains no details in respect of when or how that occurred, and further, although the letter references attaching "…a sheet outlining the calculation of this overpayment for your review" there is no copy of any such attachment placed to the file. We accept the worker's evidence that they did not receive any direct deposit payment explanation documents, as supported by the documented February 14, 2025 email to the WCB case manager, and further did not receive any subsequent explanations of those payments nor the overpayment. In the circumstances, we find this duplication of payment on February 19, 2025 to be an administrative error on the part of the WCB.

Further, having reviewed all the file documents and considered the worker's testimony, the panel finds that the WCB notified the worker of an administrative error in payment of wage loss benefits approximately five months after the error occurred. In this case, the panel also finds that the worker should not have been aware that they received a duplicate payment of wage loss benefits for the period of June 19 - July 30, 2023 given the timing of this payment approximately a year and a half after the applicable earnings period, the absence of any detailed explanation by the WCB for the payments made on February 7, 2025 and February 19, 2025, the fact that those payments were not in the same amount, the fact that the worker sought but did not obtain any explanation for the February 7, 2025 payment, and the fact that even upon advising the worker of the WCB's determination there was an overpayment for that earnings period, the WCB failed to explain to the worker when the overpayment occurred and how the amount was calculated.

The panel finds that it is not the worker's responsibility to understand the details of how the WCB calculates their individual and specific wage loss entitlement, but that it is the WCB's responsibility to share this information with the worker upon request, if not in every circumstance. Here, the worker specifically requested that information and the WCB agreed to provide it when finalized, but there is no evidence that ever occurred.

While, in general, the panel 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 received a duplicate payment of wage loss benefits for the period of June 19 - July 30, 2023 in the sum of $4,990.10, which is an overpayment of benefits, but the worker is not responsible for repayment of that overpayment amount. The worker's appeal is granted in part.

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 9th day of April, 2026