WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150039
DECISION DATE:
April 24, 2015
OBJECTING PARTY:
Estate of Worker
REPRESENTED by:
Self-Represented
RESPONDENT:
Employer (not participating)
HEARING:
Hearing in Writing
HEARD by:
L. Diaz, Appeals Resolution Officer
ISSUE
The worker’s spouse is requesting an elimination of or a reduction in the recoverable overpayment made as a result of her eldest child retroactively receiving Survivors’ benefits.
BACKGROUND
This claim was allowed for Survivors’ benefits as a result of the worker’s unfortunate passing on November 12, 2005 related to a gas leak while employed as a Technician. He was 42 years old at the time of his death and had a spouse and two daughters aged 13 and nine.
In December 2005, the worker’s spouse was advised in writing of her benefit entitlement under the claim. She received a one-time lump sum award of over $52,000, and was advised she would receive a monthly benefit of $3223.00. Applicable burial expenses were also paid. The letter also indicated the spouse’s pension would be recalculated when her youngest child turned 19 – an example of the recalculation was provided. It was further clarified in an
October 11, 2006 letter to the spouse.
In March 2014, the spouse was informed her benefits would be recalculated as her youngest child was turning 19 years of age. This letter also confirmed the spouse had requested a breakdown of the Education Benefits her eldest daughter would have received had the WSIB known she had pursued post-secondary education. The total her eldest daughter would have received is $13,572.70. It was noted that during the time the eldest daughter had pursued post-secondary education, from June 1, 2011 until the March 2014 letter, the spouse had received the maximum Survivors’ benefits payable, i.e. 85% of the worker’s net average earnings (NAE).
Adjudicator’s decision
According to the May 6, 2014 decision, at the spouse’s request, the eldest daughter was paid retroactive Survivors’ benefits from May 31, 2011 until April 1, 2014, totalling $13,490, which resulted in a recoverable overpayment to the spouse for the same amount. The amount currently being collected from the spouse’s $2,291.94 monthly pension is $109.00 until the debt is fully repaid on June 1, 2024.
Spouse’s position
In the spouse’s submission, she indicated her daughter should rightfully have received her 10% pension while pursuing post-secondary education, and due to the forms being sent to their old address, her daughter did not receive the appropriate notification, and at the time did not receive the monies to which she was entitled. As a result, she does not feel it is fair that the WSIB created a recoverable overpayment from her own pension amount.
AUTHORITY
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
18-01-04 Recovery of Benefit-Related Debt
20-03-06 Souse With One or More Children
20-03-12 Child 19 Years or Older Continuing in Education
ANALYSIS
I find the recoverable overpayment made as a result of the oldest child retroactively receiving Survivors’ benefits at the direction of the spouse is correct. Policy 20-03-06 records that spouses who have at least one child under the age of 19 who live with the spouse, or are in the spouse’s custody or care and control, are entitled to receive periodic monthly payments equal to 85% of the worker’s net average earnings (NAE) at the time of injury.
If the child turns 19 and is continuing in school, that child receives periodic payments of 10% of the worker’s NAE. The spouse’s payments are then reduced by 10%, to a maximum payment between the spouse and the child/children of 85%, provided the spouse still has a dependent under the age of 19, which was the case in this claim.
Policy 20-03-12 also speaks to this issue and provides a comparable example:
Periodic payments
If the WSIB considers it advisable for a child between the ages of 19 and 30 to continue in education, the child directly receives periodic (monthly) payments equal to 10% of the worker’s net average earnings (NAE) at the time of the injury.
Example
A work-related injury causes a worker’s death in August 1998. The worker’s net average earnings were $2,000 per month. The worker is survived by a spouse and two children. The children, aged 14 and 20, live with the spouse. The 20-year old is in university.
The 20-year old receives periodic payments in the amount of $200 (10% of the worker’s NAE). The spouse’s periodic payments are then $1500/month:
$1700 - $200 = $1,500/month.
(85% NAE) - (child’s pmt.) = (spouse’s pmt.)
The total amount of the benefits payable to all of the worker’s survivors is limited to 85% of the worker’s NAE.
Policy is clear, as is noted above, that the total amount of benefits payable to all of the worker’s survivors is limited to a maximum of 85% of the worker’s NAE (emphasis added). In other words, all of the worker’s survivors combined cannot receive more than 85% of his NAE.
In this particular case, from May 31, 2011, until April 2014, the spouse had already received the maximum of 85% of the worker’s NAE. As a result, according to policy, the survivors cannot receive any more than this quantum.
Although the spouse indicated in her arguments it was not fair that her daughter did not receive the periodic payments of 10% while attending post-secondary schooling due to an administrative error which resulted in the forms being sent to their old address, the spouse herself nonetheless did receive the full 85% of the worker’s NAE. In my view, the daughter already benefitted from the 10% received by her mom as, during this period of time, her mom presumably provided her with room, board, meals, and educational assistance, which is how this pension benefit is intended to assist the child. In other words, the mom automatically diverted assistance during this period of time to the child in the above manner by receiving the child’s 10% pension benefit.
Policy 18-01-04, Recovery of Benefit-Related Debt, confirms that a benefit-related debt includes any payment the WSIB made to a worker, survivor, dependant, an employer, or any other person that receives monies that exceed entitlement under the insurance plan. It also confirms the WSIB pursues full recovery of a benefit-related debt resulting from:
duplication of employment earnings and benefits under the insurance plan
failure to report material change in circumstances
fraud, and/or false or misleading statement(s) or representation, in connection with a claim for benefits or an attempt to obtain payment for goods or services provided to the WSIB
administrative error when the debtor was aware or should reasonably have been aware of the error.
The above policy also specifies the WSIB pursues recovery action when a debt results from an administrative error and the debtor knew or reasonably should have known that the payment exceeded entitlement. Administrative errors include systems errors, human errors, and mathematical errors or miscalculations.
In the circumstances of this particular case, it is reasonable to classify the debt as a human or perhaps even system administrative error. According to the above policy clarification, the WSIB pursues recovery action when a debt results from an administrative error and the debtor knew or reasonably should have known that the payment exceeded entitlement. The file information confirms the spouse was aware that if benefits were to be diverted retroactively to her daughter, then a benefit-related debt would be created for the period in question and would be deducted from her pension benefit entitlement.
To reduce or eliminate the debt owing would be to pay the survivors in excess of the worker’s NAE for the period in question, and in excess of what is directed by policy.
Nonetheless, with respect, I find the spouse’s arguments pertaining to the lack of fairness in her daughter not receiving the benefits are unfounded, as the file documentation confirms that she herself directed that her oldest child retroactively be paid the 10% benefit from May 31, 2011 until April 2014. This request was made by the spouse knowing that a recoverable overpayment was going to be created in the same amount which would be taken out of her future pension payments. I find she was fully aware of the consequences of this request.
As a result, having carefully reviewed the file documentation, the applicable policy, and the arguments presented, for the reasons outlined above, I find a recoverable overpayment was appropriately created.
CONCLUSION
I conclude a recoverable overpayment was appropriately made as a result of the spouse’s oldest child retroactively receiving Survivors’ benefits.
The spouse’s objection is therefore denied.
DATED April 24, 2015
L. Diaz
Appeals Resolution Officer
Appeals Services Division