Worker downplayed abilities from injury while surveillance showed otherwise; benefits terminated for abusing modified work program
A Prince Edward Island worker who had his workers’ compensation benefits terminated after surveillance showed him doing more than he said he was capable of has had his appeal dismissed by the P.E.I. Court of Appeal.
Robert Doiron was a police officer and security officer at the University of Prince Edward Island in Charlottetown. On Oct. 29, 2015, Doiron was on duty patrolling the university campus when he slipped and fell down some stairs. In the fall, he injured his right groin muscle and strained his left hip, requiring him to take time off work.
Doiron was approved for workers’ compensation benefits and the P.E.I. Workers’ Compensation Board (WCB) set up a program with the aim of easing him back to work. The program would start with modified sedentary duties and gradually increase his hours until he was able to return to full-time work.
However, the program didn’t go well and by July 2016 Doiron still wasn’t back at work on a regular basis. Doiron’s case co-ordinator from the WCB believed Doiron wasn’t co-operating with the return-to-work and rehabilitation plans — partly based on surveillance footage that suggested Doron had more functional ability than he was letting on — so the WCB stopped his benefits effective July 29.
Four days later, on Aug. 2, Doiron called the WCB’s customer liaison and said he didn’t have a good relationship with his case co-ordinator. Each time he spoke with the co-ordinator, they interrupted each other and the conversations didn’t go anywhere, Doiron said. He was frustrated that the WCB wasn’t taking the advice of his doctors, who had recommended that he only work two to three hours every other day — the return-to-work plan had attempted to build up to more hours than that.
Video surveillance raised suspicion
The customer liaison advised Doiron that she would review his file and get back to him. After she reviewed the file, she sent it along with the surveillance footage to a WCB medical advisor. The surveillance footage was taken over several days between March 29 and July 16 and showed Doiron doing activities such as walking the dog, cutting grass and doing yard work, walking easily on uneven terrain, and working out at a gym — though Doiron had advised that his hip injury caused him to hobble, he was in constant pain, and he could “do a few things at home and might attend a half-hour meeting once in a while.” The medical advisor felt Doiron showed “much more functional ability from the surveillance video than he reports being able to do to his caregivers and to his case co-ordinator on this claim.” The medical advisor also noted that Doiron had attended city council meetings — lasting between 10 minutes and 3.5 hours — on a regular basis.
On Aug. 17, the customer liaison and the WCB’s manager of employer and services adjudication met with Doiron to show him the surveillance video and give him a chance to respond. Doiron said he wasn’t hiding anything and he had never said he was totally disabled, nor was he aware that he could change his modified work plan if necessary.
The WCB decided Doiron had been abusing the return-to-work and rehabilitation plans and determined on Sept. 8 that his claim for benefits would be closed, referring to its policy on fraud prevention and investigation that defined program abuse as “any practice that uses the workers compensation program system in a way that is contrary to its intended purpose or the law.”
On Nov. 3, Doiron ran into the WCB investigator who had taken the surveillance footage at a fitness centre. Doiron swore at the investigator, called him a “rat,” and said, “don’t worry, I’ll get you back.”
The following month, a WCB internal reconsideration officer denied Doiron’s appeal of the decision to close his file for program abuse. Doiron appealed to the province’s Workers’ Compensation Appeals Tribunal, which initially found the WCB’s decision to terminate benefits on July 29 was wrong — the WCB could only withhold benefits if the worker wasn’t complying — but it found the later decision to terminate his claim for program abuse was correct, as Doiron hadn’t provided “information concerning his functional abilities and by understating his abilities, using the system in a way that is contrary to its intended purpose or the law.” The employer was flexible in offering modified duties, but Doiron didn’t provide any assistance in identifying suitable work or advising of any duties beyond sedentary ones he could perform, said the tribunal.
Doiron appealed to the province’s Court of Appeal, arguing the tribunal erred in law or exceeded its jurisdiction on deciding he abused the program, failed to co-operate, and in interpreting the P.E.I. Workers’ Compensation Act.
The court initially addressed Doiron’s contention that the tribunal erred when it found he had abused the program without weighing the evidence. The tribunal’s examination of the evidence was a question of fact, not law, that the tribunal had jurisdiction to decide and the court declined to deal with it.
As for the evidence and the WCB’s decision, the surveillance video showed a reason for the WCB to suspect Doiron wasn’t being completely forthcoming about his functional abilities. Though Doiron had no notice of the Aug. 17 meeting to discuss the video, he had an opportunity to respond then and almost another month to respond before the WCB decided to close his claim for benefits, said the court.
The court found the tribunal properly weighed the video evidence, the proposed modified work plan, the employer’s accommodations, and the medical evidence. Its conclusion that Doiron abused the program fell within a reasonable range of outcomes, the court said.
The court determined that the decision to terminate Doiron’s workers’ compensation benefits because he engaged in program abuse was reasonable based upon the evidence and was “transparent and intelligible.” Doiron’s appeal was dismissed.
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