Injured worker fails to report improvement (Legal view)

Videotaped driving, working out and lifting heavy objects, he loses WSIB benefits
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 03/13/2012

An Ontario worker violated the province’s workers’ compensation legislation when he failed to notify the Workplace Safety and Insurance Board (WSIB) of his improving medical condition while receiving benefits, the Ontario Court of Justice has ruled.

Douglas Koomson, 30, was working as a drywall taper for Woodbridge, Ont.-based Anco Contracting in April 2007 when he fell off a scaffold. He fell up to four feet and hit his head. At the hospital, it was determined Koomson had suffered permanent, cognitive impairment from head trauma as well as back, neck and shoulder injuries.

Long-term impairment and benefits

Koomson’s impairment included memory difficulties, a short attention span, poor decision-making, reading and language difficulties and problems interacting with people. Because of his cognitive impairment, Koomson’s driver’s licence was suspended for one year and a rehabilitation plan was implemented to try to develop his cognitive abilities to make him able to live without a support worker and, eventually, perform work in some capacity. As part of his plan, he would receive training on how to use public transit.

Koomson reported pain in his injured areas and headaches, had problems sleeping and also suffered from depression in the wake of his accident. He made a claim for workplace injury benefits and the WSIB approved him for benefits under its special injury program. The program provided compensation for health- care services, loss of wages, medications, support services for personal care — his wife served as his personal care attendant — and a lump-sum payment of $48,848.72 covering non-economic loss from his permanent impairment.

On all of its documentation, the WSIB informed Koomson he was required to report any changes to his medical condition so it could assess his personal care needs. This reminder was included on annual correspondence and records of his benefits.

In December 2007 and January 2008, a psychologist examined Koomson and found there were “inconsistencies” between what Koomson could do and his description of his functional level. It was likely his cognitive function would continue to improve, though he was still dependent on a personal caregiver.

Another examination with the same psychologist in May 2009 was incomplete as Koomson was reportedly reluctant to participate and “uncomfortable and evasive when describing his own symptoms.”

On Aug. 11, 2009, shortly before Koomson’s public transit training was to begin, Anco Contracting sent three DVDs to the WSIB that contained video of Koomson driving a vehicle and running errands that were supposed to be beyond his functional abilities. The WSIB hired private investigators to carry out surveillance of Koomson for three weeks, from Sept. 29 to Oct. 19, 2009.

The private investigators observed Koomson driving, shopping, working out at a gym, conducting financial business at a furniture store, retrieving mail, banking at two different banks and lifting heavy objects — all on his own. These activities were recorded by the investigators and documented through a report and videotapes.

Benefits halted after investigation

The WSIB felt the videotapes demonstrated capabilities — such as driving, performing several tasks and transactions independently and vigorous physical activity — that were inconsistent with its records of Koomson’s cognitive impairment.

It determined if he was able to perform these activities, he should be able to return to work. In addition, the WSIB felt Koomson was not as injured as he had made himself out to be. So on Jan. 26, 2010, the WSIB suspended all his benefits.

Koomson submitted a letter to the WSIB written by a psychologist that stated it was “highly improbable” he was playing up his injuries. Another letter from a psychiatrist stated Koomson’s recovery had slowed, “some symptom exaggeration” was likely and a proper assessment could not be done.

In addition to stopping Koomson’s benefits, the WSIB charged him under Ontario’s Workplace Safety and Insurance Act (WSIA) for “willfully” failing to inform it of “a material change in circumstances in connection with their entitlement to benefits within 10 days after the change occurs.”

Koomson argued there was no medical opinion his medical condition had changed and there was no justification for the cessation of his benefits or the charge under the WSIA. In addition, even if there was a change in his condition, his cognitive impairment — which affected his memory and decision-making — prevented him from following the right procedure of notifying the WSIB and was not a willful subterfuge, he said.

But the WSIB didn’t need a medical opinion to determine there was a material change in Koomson’s condition because the videotapes clearly showed him performing tasks he was not supposed to be capable of, found the court. For example, medical experts stated he was incapable of driving following his accident, but he was observed doing just that by October 2009.

His activities on the videotapes showed “his cognitive and physical abilities seem to have significantly improved,” said the court. In addition, the reports of the psychologist and psychiatrist indicated there was a possibility Koomson was improving more quickly than he was letting on.

The court did not agree with Koomson’s claim he wasn’t able to recognize when he should inform the WSIB as he was performing activities that involved regular cognitive functions without difficulty over a long period of time. There was no evidence he wasn’t in control of his facilities and there was no indication in his initial medical diagnosis his impairment rendered him “incapable of appreciating the nature and quality of his acts,” said the court.

“If (Koomson) was not in an unconscious or dissociative state from Oct. 1 to Oct. 19, 2009, then it can be inferred that the acts or omissions done by (him) were willed or voluntary,” said the court.

There was a material change in Koomson’s medical condition that affected his WSIB benefits and he failed to report it, which upheld the cessation of his benefits and the charge under the WSIA, found the court.

For more information see:

Ontario (Workplace Safety & Insurance Board) v. Koomson, 2011 CarswellOnt 14836 (Ont. C. J.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information visit www.employmentlawtoday.com.

Add Comment

  • *
  • *
  • *
  • *