Decision #54/20 - Type: Workers Compensation

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that he was entitled to full wage loss benefits to December 16, 2017, inclusive; that he was overpaid benefits from December 17, 2017 on; and that he was required to repay the overpayment. A hearing was held on March 4, 2020 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to full wage loss benefits after December 16, 2017; 

2. Whether or not the worker has been overpaid benefits for the period December 17, 2017 to November 30, 2018; 

3. Whether or not the worker is required to repay the overpayment; and 

4. Whether or not the worker is entitled to full wage loss benefits after November 30, 2018.

Decision

1. That the worker is entitled to full wage loss benefits after December 16, 2017; 

2. That the worker has not been overpaid benefits for the period December 17, 2017 to November 30, 2018; 

3. That the worker is not required to repay the overpayment; and 

4. That the worker is entitled to full wage loss benefits after November 30, 2018.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 09/15, dated February 2, 2015. The background will therefore not be repeated in its entirety.

On September 6, 2011, the worker filed a Worker Incident Report claiming that he developed traumatic mental stress from a work-related incident that occurred on August 18, 2010. The Employer's Incident Report dated September 12, 2011 confirmed that an incident occurred in the workplace on August 18, 2010. The employer indicated that the worker took sick leave for his next two shifts and was completely off work as of March 18, 2011.

In a decision dated October 7, 2011, the worker was advised that the WCB was unable to establish an accident arising out of and in the course of his employment, and that his claim for stress had been denied. The adjudicator indicated that the August 18, 2010 event had been confirmed; however, the WCB was unable to confirm that he was having any difficulties related to the incident. The adjudicator noted that the worker continued to work his regular job duties and he did not seek medical attention nor did he inform his employer of any difficulties related to the work incident. On January 26, 2012, the worker appealed the decision to deny his claim to Review Office. On March 26, 2012, Review Office reversed the previous decision and determined that the worker had an "accident" on August 18, 2010 which resulted in a psychological injury.

On March 14, 2013, the employer appealed the Review Office decision of March 26, 2012 to the Appeal Commission. The employer later cancelled the appeal and filed a new appeal on January 21, 2014. A hearing was then held at the Appeal Commission on December 8, 2014.

In Decision No. 09/15 dated February 2, 2015, the Appeal Commission found that the worker had an acceptable claim for a psychological injury by accident arising out of and in the course of employment, and dismissed the employer's appeal.

The worker returned to work, with restrictions, in accommodated positions in 2015.

On October 19, 2017, the worker's spouse contacted the WCB to advise that the worker suffered a relapse of his psychological injury due to an incident that occurred at work. On October 27, 2017, the WCB advised the employer that a recurrence of the worker's injury was accepted and he was placed back on full wage loss benefits.

On October 31, 2017, the worker's treating psychologist advised that the worker was "…unable to attend work at the moment" and noted that the worker required further treatment due to the recurrence of his symptoms. In a follow-up discussion with the psychologist on November 21, 2017, the worker's WCB case manager was advised that the worker "…may be fit for a GRTW (graduated return to work) at some point in the next 6-8 weeks if it was at a different location." Following review of the worker's file by a WCB psychological consultant, a further restriction was added to the worker's permanent restrictions, that: "The claimant should not work in an environment where there is a reasonably high risk and known historical presence of client volatility, threats of violence, or high levels of confrontation. This would preclude the [worker] going back to his accommodated site on [name] Street."

The worker continued to receive treatment from his treating psychologist, as well as from his family physician who, in his report to the WCB on May 7, 2018, "strongly urged" that the worker be "…finally offered appropriate employment!!!" On May 28, 2018, the WCB provided the employer with the worker's updated restrictions, and on June 5, 2018, the employer advised that they were looking for an accommodated position for the worker. On June 19, 2018, the worker's WCB case manager met with the employer and an accommodated position was suggested by the employer. The case manager advised that a meeting was being arranged with the worker's healthcare provider to continue with return to work planning and more information would be provided after that meeting.

On July 9, 2018, the case manager met with the worker, his spouse and his treating psychologist to discuss return to work planning. A further meeting with the WCB case manager, the worker and the worker's spouse took place on August 29, 2018 where a referral to a psychiatrist was suggested and forwarded to the worker's treating family physician. On September 27, 2018, the worker declined the referral to a psychiatrist, and on October 5, 2018, the WCB case manager provided the worker with a draft referral to the psychiatrist for his information and advised his attendance and participation was required.

On November 21, 2018, the WCB provided the worker with a copy of an "Investigative Report" prepared by the WCB's Compliance Services Department, for his review and explanation by November 30, 2018. On November 30, 2018, the worker's spouse provided a written response to the report on behalf of the worker.

On December 3, 2018, the worker was advised by the WCB that following consideration of the findings from the WCB's Compliance Services Department, the response from the worker's spouse, and a report from the WCB psychological consultant, it had been determined that the worker was fit to return to work, with restrictions, as of November 17, 2017. The WCB noted that the worker and his spouse had made assertions in 2017 and 2018 that the worker had significant difficulty leaving home, attending public places and with interaction, and had portrayed himself as "unemployable". The worker's actions, including a significant amount of international travel and involvement in the martial art community and related activities, as well as a vacation abroad in November 2017, contradicted the worker's reported difficulties. The worker was advised that if he wished to provide further clarification, they could arrange a meeting for him to attend, under oath, with Compliance and Case Management. The worker was further advised that his benefits had been discontinued as of November 30, 2018, and an overpayment of wage loss benefits incurred between November 17, 2017 and November 29, 2018 would be set up for repayment/collection.

On March 13, 2019, the WCB advised the worker that they would not cover further treatment or medications as related to his 2010 claim. The WCB noted that in the December 3, 2018 decision, the worker had been invited to attend a meeting to provide clarification of the investigation findings and his status, but had not followed up on that. The WCB advised that the opportunity to do so was still available and was required to complete the investigation, and that until the WCB was provided with additional material evidence, there would be no reason to support a change in their decision or entitlement to further benefits.

On March 28, 2019, the worker's union representative provided additional information and requested that the WCB reconsider their December 3, 2018 and March 3, 2019 decisions. The representative submitted that the WCB acknowledged the worker's compensable psychological injury and permanent restrictions precluded the worker returning to his pre-accident position, but presumed the worker was capable of returning to alternate work as of November 17, 2017, based on his activities as set out in the WCB's Compliance Services report. The worker's representative submitted, however, that the worker was still disabled as a result of his compensable psychological injury as of that date and was unable to return to work. The representative also submitted that a February 13, 2019 assessment, completed by an independent psychiatrist at the employer's request, supported that the worker's disability was ongoing.

The worker's representative further submitted that while the WCB concluded the worker's activities were evidence of misrepresentation and program abuse, the evidence was insufficient to corroborate the claim that the worker intended to deceive his employer, his healthcare providers or the WCB. The representative submitted that the ongoing effects of the worker's psychological injury continued to prevent a sustainable return to work, and even if the worker was capable of functioning within the workplace, the WCB had failed to demonstrate that the employer had, and continued to have, an appropriate accommodation available to him. On May 9, 2019, the WCB advised the worker's representative and the worker that their earlier decisions remained unchanged.

On May 17, 2019, the worker's union representative requested that Review Office reconsider the WCB's decision. The representative submitted that the evidence on file, as well as the evidence provided with their March 28, 2019 submission, supported the worker's entitlement to ongoing wage loss and medical aid benefits. The representative noted that contrary to the WCB's position, the employer had accepted the February 2019 assessment by the independent third party psychiatrist that the worker was unable to attend work. The representative submitted that the evidence relied on by the WCB was not sufficient to justify the WCB's allegations of misrepresentation. On June 26, 2019, the employer provided a submission in support of the WCB's decision, and on June 28, 2019, the worker's representative provided a response to that submission.

On July 4, 2019, Review Office determined that the worker was entitled to wage loss benefits beyond November 17, 2017, that the worker was not currently overpaid, and that the worker was entitled to further medical aid benefits. Review Office found that the evidence supported the worker had misrepresented himself on the claim file. Review Office noted, however, that he continued to have an active diagnosis of "PTSD with dissociative symptoms, Major depressive disorder, recurrent, severe," and workplace restrictions which prevented him from working at his pre-accident employment and at the latest accommodation provided by his employer, which ended in 2017.

Review Office acknowledged that the employer indicated to the WCB case manager on December 3, 2018 that they would have accommodated the worker had they known he was fit to return to work within his restrictions, as they had demonstrated an ability to do in the past. Review Office stated that they had no doubt an accommodation could be made, but before wage loss benefits were discontinued, it must be demonstrated that appropriate accommodation could be made, which would not have occurred on November 17, 2017 when the worker was deemed fit to work. Review Office found that it was up to the employer to demonstrate that an appropriate job which would have accommodated the worker's restrictions was available during the period of time in question, and returned the worker's file to the WCB's Compensation Services to re-adjudicate the claim with respect to the appropriateness of the accommodation and entitlement to wage loss benefits.

On August 1, 2019, the employer provided the WCB with descriptions of positions which they said would have been available to the worker to perform, within his restrictions, as of November 17, 2017.

On August 14, 2019, the WCB's Compliance Services advised the worker that they had determined he committed program abuse by directly or indirectly exaggerating the effect of his compensable illness or injury, by providing false information to the WCB, misleading the WCB, and withholding material information from the WCB related to the extent of his daily activities and capabilities. Compliance Services stated that details regarding the worker's abilities, travels, and coping strategies would have been valuable in terms of managing his treatment, reviewing potential return to work placements, and implementing strategies specific to the worker, and found that the worker's actions created a barrier to developing and implementing a return to work plan.

On August 15, 2019, the WCB advised the worker that they had determined the employer was able to accommodate him on or before November 17, 2017 in a suitable position, taking into account his restrictions, and that the worker would have been fit to commence employment effective November 18, 2017. The WCB advised that they had determined the worker was entitled to wage loss benefits for November 17, 2017 only. They further advised that an overpayment effective November 18, 2017 to date would be calculated, and that given his participation in program abuse, the worker would be responsible for repayment of the full amount of the overpayment.

On August 26, 2019, the worker's union representative requested that Review Office reconsider the WCB's August 15, 2019 decision. The worker's representative submitted that the employer failed to demonstrate that suitable modified work would have been immediately available, and that the positions presented were not suitable. The representative further submitted that the employer had provided no evidence to corroborate that the positions actually were available in November 2017 or would have continued to be available. The representative submitted that the information in the Compliance Services reports was not sufficient to support that the worker intentionally misrepresented the severity of his injury, and was wholly inadequate to justify the allegations of program abuse. It was submitted that the medical evidence established that the worker continued to suffer the effects of his compensable injury, which prevented his return to work in November 2017 and still precluded his returning to work. On October 22, 2019, the employer provided a submission in support of the WCB's decision.

On October 30, 2019, Review Office determined that the worker was entitled to wage loss benefits until December 16, 2017, inclusive, that the worker had been overpaid and that the worker was required to repay the overpayment. Review Office acknowledged that the employer had provided the WCB with several different positions which would have been available in November 2017 and indicated they could have immediately accommodated the worker. Review Office found it was unreasonable, however, to suggest the worker could have been accommodated the next day. Review Office noted that the position was an adapted accommodation, and that the employer had indicated their willingness to adapt and evolve the job duties. Review Office determined that 30 days would have been a reasonable timeframe for the employer to make arrangements and complete the worker's transition back into the workforce in accommodated job duties.

Review Office went on to find that the worker was entitled to full wage loss benefits to December 16, 2017 and was therefore overpaid from December 17, 2017 on, and that the worker's file was to be returned to the WCB's Compensation Services to recalculate the overpayment. On October 31, 2019, Review Office further confirmed that the worker remained entitled to partial wage loss benefits, as he was not being paid at his pre-accident job rate at the time of the recurrence of his injury and was receiving partial wage loss benefits when his accommodated job ended.

On November 1, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of 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 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states:

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Subsection 39(2) of the Act provides 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.

Section 109.2 of the Act provides that where a worker receives an overpayment of compensation, being an amount that the board determines is in excess of that to which the person is entitled, the WCB may recover the overpayment as a debt due to the board.

WCB Policy 22.20, Program Abuse (the "Program Abuse Policy"), outlines the authorities, principles, and processes for responding to allegations or suspected cases of program abuse. Program abuse is defined to mean "…receiving an advantage or benefit from the WCB that should not have been received and includes fraud, which is defined by the Criminal Code of Canada." The Policy provides that:

Examples of program abuse include: 

… 

• Exaggerating the effect of an illness or injury; 

… 

• Fraud committed against the WCB; 

• Violations of The Workers Compensation Act...

Program abuse does not include actions that are innocently or inadvertently taken as a result of unfamiliarity with the workers compensation system. The WCB recognizes its responsibility to ensure that stakeholders are aware of their obligations and entitlements under the Act.

WCB Policy 35.40.50, Overpayment of Benefits (the "Overpayment Policy"), establishes the framework for preventing, recovering and writing off overpayments. Part B of the Policy, relating to recovery of overpayments, provides in part that:

All overpayments will be pursued for recovery when: 

… 

2. there is evidence of fraud, deliberate misrepresentation, delays in providing or withholding of key information by the injured worker or worker's dependant affecting benefit entitlement…

WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy describes suitable modified or alternate work as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

WCB Policy 44.10.30.60, Co-operation and Mitigation in Recovery (the "Co-operation Policy"), addresses the obligation to co-operate and mitigate and states that:

The Act requires that workers take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from a workplace injury. This is also known as a duty to mitigate the negative effects of a workplace injury. A worker can mitigate the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker's recovery and return to work.

Part B of the Co-operation Policy, entitled Return to Work and Other Programs, further states, in part, that:

An injured worker is required to participate reasonably in their return to work, rehabilitation, disability management and other programs The worker's responsibilities include the following:

a) Reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker's recovery…

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made a presentation to the panel. The worker was accompanied by his spouse at the hearing, and he and his spouse responded to questions from the worker's representative and the panel.

The worker's position, as set out in his Appeal Form, was that:

We disagree with the WCB's determination that the worker has misrepresented the effects of his compensable psychological injury. We submit that the evidence supports that the worker has not been overpaid wage loss benefits, and instead is entitled to the wage loss benefits already paid to him as well as further and ongoing wage loss benefits, because he was, as of December 17, 2017, continued to be as of November 30, 2018, and still continues to be, unable to work in any capacity as a direct result of the symptoms and restrictions associated with his compensable psychological injury.

The worker's representative submitted that the available evidence confirmed, without question, that the worker has continued to suffer the effects of his compensable psychological injury, diagnosed as PTSD, major depression, since the 2010 workplace incident. While he was able to manage his symptoms sufficiently to engage in alternate work duties and to maintain stability in his accommodation for nearly two years, the evidence confirmed that his symptoms again became disabling following a lock-down of his workplace on October 19, 2017.

The worker's representative submitted that the WCB concluded that perceived inconsistencies between the worker's reports of the severity of his symptoms and on-line photos of his trip abroad in November 2017 and martial art activities showed an intent to mislead the WCB and his treatment providers. The representative noted that in support of its position, the WCB relied in particular on a reported statement by the treating psychologist to the worker's case manager that the psychologist was unaware of any of the worker's travel. The representative noted, however, that in a report to the WCB, the treating psychologist denied making that statement, and he maintained that while he did not know the extent of the worker's travels, he was aware of his capacity to travel, and even encouraged him to do so as a means of mitigating his symptoms. The representative noted that a complete copy of the psychologist's clinical notes submitted in advance of the hearing corroborated the psychologist's report that the worker did in fact talk about his martial art involvement and his travel during their sessions. The representative submitted that the discrepancies in this evidence cast doubt on the reliability of the case manager's notes, the precise wording of which was relied on by the WCB to conclude that the worker had made false statements in an attempt to mislead.

The worker's representative submitted that due to his injury, the worker is suspicious of everyone, including the WCB, and did not openly discuss those matters, which he considered personal and something the WCB did not need to know. He submitted that file documentation confirmed the WCB was historically aware of the worker's martial art activities, and his prior case manager and treating psychologist had supported his ongoing involvement. The representative further submitted that the still images of the worker at martial art events did not show that he could work. He submitted that the worker had maintained this lifelong connection with the martial art community as a means of coping with his injury, and the WCB should have encouraged his volunteerism rather than penalizing him for it.

The worker's representative submitted that his treatment providers uniformly encouraged him to maintain involvement in aspects of his pre-accident identity as a means of therapy. He referred to opinions from two psychiatrists in 2019 and early 2020 which were provided in advance of the hearing, and submitted that opinions offered by the worker's prior treating psychologist and the two psychiatrists established that the worker's capacity to act as a martial art referee did not demonstrate any capacity to return to work. The representative submitted that while the WCB concluded, based on the Compliance Services report, that the worker's injury was in remission within weeks of its occurrence and that his capacity to travel abroad was clear evidence he was able to go back to work, the preponderance of medical evidence on file countered this conclusion. He noted the reports from the treating psychologist and psychiatrists who assessed and provided treatment to the worker supported that despite his ability to continue volunteering with martial art events, the chronic symptoms of PTSD and depression were so severe that they effectively rendered him unable to work in any capacity.

The worker's representative observed that despite the fact that no suitable accommodation had been identified by the employer in real time between May and October 2018, Review Office determined that the employer would have accommodated the worker nearly a year earlier. The representative submitted that the decision in this regard resulted in a theoretical and speculative exercise at the expense of the worker. He acknowledged that the employer has the capacity to find suitable accommodations in many cases, but submitted that the evidence did not establish that the employer could or would have done so in this instance. The representative submitted that the conclusion the employer would have been able to locate and arrange an accommodation within weeks was incompatible with the file history and documentation.

In conclusion, the worker's representative submitted that the medical evidence confirmed that the worker has continued to be "occupationally disabled" since his recurrence in 2017. He submitted that the worker is entitled to wage loss benefits previously paid because the evidence in the Compliance Services report is inadequate to show any misrepresentation or any capacity to work. The representative therefore submitted that the worker has not been overpaid and there is no repayment to be made. Finally, he submitted that the medical opinions provided by the prior treating psychologist and more recently by the two psychiatrists, as well as a February 18, 2020 report from the worker's new treating psychologist, demonstrated that the effects of the worker's compensable injury precluded his return to work when the WCB terminated his entitlement to benefits, and continues to do so.

Employer's Position

The employer was represented by an advocate, its Disability Specialist and its Director of Human Resources, who submitted a written submission in advance of the hearing and made a joint presentation to the panel.

The employer's position was that they agreed with the Review Office decision of October 31, 2019.

The employer's advocate submitted that had they been aware of the full extent of the worker's capabilities as revealed in the Compliance Services investigation, they would have had sufficient time to fulfill their re-employment obligation by offering the worker suitable alternate employment before December 17, 2017. The advocate submitted that the worker and his spouse consistently maintained, and have continued to maintain, that the worker was completely unfit to work, thereby stalling the accommodation process. It was submitted that specific accommodations which would have been available at that time were provided to Review Office who accepted the job duties as suitable and within the worker's restrictions.

The employer's advocate submitted that as explained by Review Office, the worker presented himself as having severe limitations regarding not only his ability to return to work, but also his ability to function in society in general. In consideration of the findings by the WCB Compliance Services investigation, Review Office concluded that the worker misrepresented himself and had committed program abuse, and as such, had been overpaid and was required to repay the overpayment amount.

The employer's advocate submitted that the facts support that the worker has misrepresented himself on the claim file and there is no objective evidence to support that his "lack of openness" is a compensable condition. The advocate noted that the worker simply assigns blame for his deceptions to the compensable injury and others such as the WCB and the employer. While the worker attributed his behaviour to the compensable injury, there is no medical evidence to explain how this is a typical symptom of PTSD. The advocate acknowledged that the worker advised his original treating psychologist of his martial art related activities early in the claim, but submitted that not all treatment providers, WCB staff or the employer were made aware of the extent and frequency of these activities. The advocate noted that the worker had submitted a series of medical opinions supportive of the appropriateness of his martial art related activities and excessive travel, referring in particular to statements made by the independent psychiatrist, and responded at length to those statements. The advocate submitted that they have no doubt that the worker's description of his symptoms is consistent with the symptoms of his illness; but noted that what is at issue is the inconsistency between the worker's functional presentation and his reported symptoms.

It was submitted that the value of, or need for, the worker to participate in martial art activities is irrelevant. The issue under appeal pertains specifically to the worker withholding material information from the WCB related to the extent of his daily activities and his capabilities, particularly with respect to his avoidance of returning to work in any capacity. The advocate noted that the sequence of events showed how the periods of travel or participation in martial art events was sandwiched between the worker's documented reports of severe symptomatology, and supported the conclusion that he and his spouse misled the WCB about the extent of his disability.

The employer's advocate submitted that the weight of evidence does not support that the worker has been totally disabled from any form of work including alternate work as of December 17, 2017. The advocate submitted that the worker is not totally disabled in a general sense, and has been consistently active and participating in martial art related activities even when off work. The advocate submitted that the sequence of events and the worker's travel and participation in martial arts in the year following the recurrence of his injury support that he and his spouse misled the WCB about the extent of his disability.

It was submitted that the worker's history has demonstrated a consistent level of activity, skill and ability, albeit in service towards his personal activities, throughout the claim. Those skills and abilities could be applied to a work environment, especially one as large and diverse as the employer's. The advocate noted that this conclusion was supported by their insurance provider who rejected the worker's application for total disability benefits in May 2019, stating in part that the worker was able to work within his restrictions and limitations, and his functional abilities were within normal limits. The advocate noted that the medical board which was consulted to arrive at that decision was staffed by medical doctors, who had access to all the information on the insurance company's file, including a copy of the WCB file, and the restrictions were identified by one of their consultant psychiatrists.

The employer's advocate submitted that the history and facts of the claim support that the employer would have been able to offer a suitable accommodation to the worker by December 2017 had they been aware of the extent of his capabilities at that time.

The employer's Disability Specialist reviewed information concerning the employer's supportive employment program, and described the efforts made by the employer to accommodate the worker from the time his claim occurred in 2010. He noted that their efforts had ultimately led to a permanent accommodation in 2015 that lasted successfully for over two years. He stated that when they learned of the recurrence of the worker's injury, they developed a contingency plan and had suitable options for the worker in place by November 2017, but were advised at that time and subsequently that the worker was not fit to return to work and to wait. When a new restriction was added, they also worked to identify a suitable placement option in another office, if necessary. He submitted that the employer met their responsibility to reasonably accommodate the worker at that time and in the months that followed.

The employer's advocate referred to relevant provisions of the legislation and WCB policy and submitted that in these circumstances, the Act and policy dictate that the worker was overpaid and is required to repay the overpayment. It was submitted that, on a balance of probabilities, the weight of evidence supports the appropriateness of the Review Office decision of October 31, 2019 that the worker is not entitled to wage loss benefits beyond December 16, 2017; and that he is overpaid and is required to repay the overpayment.

In conclusion, it was submitted that the evidence supports that the worker and his spouse deliberately misrepresented and exaggerated the extent of his psychological injury while participating in personal activities that exceeded his medical restrictions. Had the employer been aware of the worker's true capabilities, they would have been able to provide a suitable accommodation by the December 2017 date which would have mitigated the effects of the worker's injury. The evidence also supports that the worker was/is not totally disabled and is fit for work. The overpayment is therefore to be repaid and further wage loss benefits are not warranted.

Analysis

Issue 1: Whether or not the worker is entitled to full wage loss benefits after December 16, 2017.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after December 16, 2017 as a result of his compensable injury. The panel is able to make that finding, for the reasons that follow.

The worker's wage loss benefits were terminated as of December 16, 2017 on the basis that he misrepresented the effect of his compensable injury, as outlined in the Compliance Services investigation and reports, which resulted in program abuse.

Based on our review and consideration of all of the available evidence and the submissions of the parties, the panel is unable to arrive at that conclusion, and is satisfied that the evidence does not support that the worker deliberately misrepresented or exaggerated the extent or effect of his injury.

In their reports, Compliance Services relied in particular on the worker's involvement in the martial art community and related activities, as well as his vacation abroad in November 2017. The reports included reference to events or trips both before the October 27, 2017 incident, when the worker was working in his accommodated position, and after the recurrence of his injury.

The panel notes that Compliance Services relied on still or on-line photos of the worker attending different martial art events or activities, and on vacation abroad. The panel does not accept that these photos are sufficient to reliably or accurately assess the worker's status or functionality. The panel further notes that Compliance Services did not speak to the worker prior to preparing their preliminary report. They then provided the report to the worker and asked him to provide an explanation within a very short period of time.

With respect to the martial art, information on file documents that the worker had previously spoken of his involvement with the martial art events to different individuals, including his earlier case manager, his treating psychologist and his family doctor. While the Compliance Services report focused on a report from the case manager that the treating psychologist had said he was unaware of the worker's travel or involvement in the martial art, the psychologist noted in a subsequent report to the WCB that was not what he had said; that he was in fact aware of the worker's capacity to travel. The psychologist's clinical notes provided in advance of the hearing confirm his advice that the worker did speak of his martial art involvement and travel during their sessions.

In response to questions at the hearing, the worker confirmed that his involvement in this martial art dated back to 1984, and that as he got older, he moved more into refereeing. The worker said that in this sport "You're not going to get a situation of being confronted or threatened or anything like that, because [martial art] just doesn't work that way…that's where it becomes more not just a sport, it's more than that, it's the art and a way of life and so forth." The worker said that he attended martial art events "for some selfish reasons really,…it's not so much competitors, it's for me, I go to try to have some normality in my life, and socialize with other people that I've known for…many years, 20 years or so and more." He described the martial art as "a lifelong thing…it's not a hobby…it's a way of life." He stated that he had never kept his [martial art] involvement a secret.

With respect to his travelling, the worker said that he and his spouse had done a lot of travelling. He described a number of measures he takes since his injury to enable him to cope with the travel and the stresses of travel. He said that the trip abroad in November 2017 was for a special family occasion, and had been pre-arranged, and the flights were booked about six months earlier. He said that his treating psychologist did not seem concerned with him going, and he was prescribed medication for the trip by his family physician. The worker also described a number of problems he had during that trip.

The panel is satisfied, based on our review of the evidence, that to the extent the worker did not discuss all of his activities with all of his healthcare providers, this did not affect his restrictions or ability in terms of returning to work. The panel is of the view that the information regarding the worker's martial art activities and travels was not key information which would have affected benefit entitlement.

The panel places weight on a January 13, 2020 report from the independent psychiatrist, who stated that the worker's problems:

…would not preclude him from participating in [martial art] and, in fact, participating in [martial art] and other exercise or structured activity would be an important part of his treatment and recovery. Symptoms of his mental illness would not impact on his ability to go on a trip.

The panel is further satisfied that the worker's travel activities and his involvement in martial art events and activities were consistent with his work restrictions.

The panel notes that the worker's permanent restrictions were very specific. Following the further incident on October 27, 2017, they were expanded by the addition of a fourth restriction which provided that:

The claimant should not work in an environment where there is a reasonably high risk and known historical presence of client volatility, threats of violence, or high levels of confrontation. This would preclude the [worker] going back to his accommodated site on [name] Street.

The employer's representative stated at the hearing that when they learned of the recurrence of the worker's injury on October 27, 2017, they developed a contingency plan and had suitable options available for the worker by November 2017. The evidence indicates, however, that any such options were not communicated to the WCB or the worker at that time, or the following year, and were not brought forward until August 1, 2019, following the decision by the Review Office on July 4, 2019.

The evidence shows an accommodated position was suggested by the employer to the WCB in June 2018. The case manager advised, however, that this was not a suitable accommodation, in part because it involved the same location as where the recurrence of the worker's injury occurred, and was outside the worker's restrictions.

Further, while the employer suggested that they could and would have accommodated the worker immediately, thereby eliminating or limiting any loss of earning capacity, this is not consistent with what had occurred historically on the file. Information on file and as provided at the hearing confirmed that following the August 18, 2010 incident, and prior to the worker's accommodation in 2015, there had been several unsuccessful attempts to accommodate the worker.

In conclusion, the panel is satisfied, on a balance of probabilities, that the worker did not deliberately or intentionally misrepresent, or exaggerate the effect of his compensable injury.

Based on the foregoing the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity after December 16, 2017 as a result of his compensable injury. The panel therefore finds that the worker is entitled to full wage loss benefits after December 16, 2017.

The worker's appeal on this issue is allowed.

Issue 2: Whether or not the worker has been overpaid benefits for the period December 17, 2017 to November 30, 2018.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity from December 17, 2017 to November 30, 2018 as a result of his compensable injury, and has not been overpaid benefits for that period of time. The panel is able to make that finding.

The panel notes that in his October 31, 2017 report, the treating psychologist commented that the worker was unable to attend work at the moment, but added that "I think returning to work as soon as feasible will be an important preventive strategy of a full relapse in psychopathology." Several months later, in a report dated May 7, 2018, the worker's family physician stated that he strongly urged that the worker "…be finally offered appropriate employment!!!" While there were some initial efforts at return to work planning, the process seemed to have essentially then stalled on all sides, as the Compliance Services investigation got underway.

In his discharge report dated January 21, 2019, the treating psychologist stated, as clarification that:

In the compliance review…there are several references to my reports stating the client was "unfit for work". I would like to point out that those comments are made consistently within the context of repeated recommendations to collaboratively develop and implement as soon as feasible a graduated return-to-work (GRTW) plan with the client, WCB case management, and the employer. Hence, my comments were to be understood as "unfit for work" until adequate accommodation was arranged.

In the circumstances, the panel is satisfied, on a balance of probabilities, that the evidence supports that the worker was unable to return to work from December 17, 2017 to November 30, 2018, inclusive. The panel therefore finds that the worker was entitled to wage loss benefits during this period, and was not overpaid benefits for the period December 17, 2017 to November 30, 2018.

The worker's appeal on this issue is allowed.

Issue 3: Whether or not the worker is required to repay the overpayment.

Given the panel's decision on Issue 2 above, that the worker has not been overpaid benefits for the period December 17, 2017 to November 30, 2018, it necessarily follows and the panel finds that the worker is not required to repay those benefits.

The worker's appeal on this issue is allowed.

Issue 4: Whether or not the worker is entitled to full wage loss benefits after November 30, 2018.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity after November 30, 2018 as a result of his compensable injury. The panel is able to make that finding.

Based on the available information, the panel is satisfied, on a balance of probabilities, that the worker was entitled to such benefits as of December 1, 2018. As indicated above, the return to work process appeared to have essentially stalled on all sides once the Compliance Services investigation was underway.

The panel notes that there are a number of new medical reports on file, which contain conflicting medical information with respect to the worker's fitness to return to work. In his report dated February 13, 2019, the independent psychiatrist thus opined that the worker "…would be unable to perform work-related functions either with or without restrictions." The psychiatrist further indicated that it was "possible that [the worker] could engage in some work where he is not required to interact with other people and is able to engage in some sort of structured physical activity."

A May 21, 2019 email from the employer's insurance provider, which was provided in advance of the hearing, indicated that the worker was being denied long-term disability as it had been determined that he was able to work within his restrictions and limitations.

When asked at the hearing whether he felt able to work in any capacity at this point, the worker responded:

I don't think I'm able, no, I’m not. You know, five days a week, 40 hours a week, or five days, eight hours a day, five days a week, 40 hours a week on a continuous based, that's ever been proven…I couldn't do it. I haven't, I haven't reached that point yet.

In the circumstances, the panel is not in a position to determine to what extent the worker is entitled to benefits beyond December 1, 2018. Entitlement to wage loss benefits after December 1, 2018 would therefore have to be referred to the WCB for their consideration and adjudication.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity after November 30, 2018 as a result of his compensable injury. The panel therefore finds that the worker is entitled to full wage loss benefits after November 30, 2018, with the extent of those benefits to be determined by the WCB.

The worker's appeal on this issue is allowed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of May, 2020

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