Worker on permanent disability benefits observed driving, working out, lifting heavy objects
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 on April 17, 2007, when he fell off a scaffold. He fell between two to four feet and hit his head, suffering serious trauma. At the hospital, it was determined Koomson had suffered permanent cognitive impairment from the 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, difficulties with reading and language, and problems interacting with people. Because of his cognitive impairment, his driver’s licence was suspended for one year and a rehabilitation plan was developed to try to develop his cognitive abilities to make him able to live without a support worker, as well as eventually perform work in some capacity. As part of the plan, he would receive training on how to use public transit to get around.
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 Ontario 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 that he was required to report any changes in his medical condition so it could assess his personal care needs. This reminder was included on annual correspondence and records of his benefits.
A psychologist examined Koomson in December 2007 and January 2008, finding there were “inconsistencies” between what Koomson could do and his description of his functional level and it was likely that 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 was “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 evidence of Koomson driving a vehicle and running errands that were supposed to be beyond his functional abilities. The WSIB hired private investigators to perform surveillance on Koomson for three weeks, from Sept. 29 to Oct. 19, 2009.
The private investigators observed Koomson driving around, 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, who presented a report and videotapes documenting everything.
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 his cognitive impairment. It determined that 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. On Jan. 26, 2010, the WSIB suspended all of Koomson’s benefits.
Koomson submitted a letter to the WSIB that was written by a psychologist and stated it was “highly improbable” that he was playing up his injuries. Another letter from a psychiatrist stated that Koomson’s recovery had slowed and “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 the Ontario 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 that his medical condition had changed and there was no justification for the cessation of his benefits or the charge under the WSIA. In addition, he argued that 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.
The court found that the WSIB didn’t need a medical opinion to determine whether there was a material change in Koomson’s condition, because the videotapes clearly show Koomson performing tasks he was not supposed to be capable of. For example, medical experts had stated he was incapable of driving following his accident but he was observed doing just that by October 2009, said the court. His activities on the videotapes showed that “his cognitive and physical abilities seem to have significantly improved,” said the court. In addition, the reports of the psychologist and psychiatrist indicate there was a possibility that Koomson was improving more quickly than he was letting on.
The court didn’t agree with Koomson’s claim that he wasn’t able to recognize when he should inform the WSIB, as he was doing things 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, said the court, and there was no indication in his initial medical diagnosis that 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.
The court found there was a material change in Koomson’s medical condition that affected his WSIB benefits and he failed to report it. It upheld the cessation of his benefits and the charge under the WSIA.
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