Worker loses benefits for lack of effort in functional assessment, wins appeal for another hearing due to tribunal’s error evaluating her case
A New Brunswick worker who lost her workers’ compensation benefits because of a perceived lack of effort in functional ability testing has won her appeal to get a reconsideration of her case due to a lack of examination of all the evidence.
Elizabeth Paul worked as a cleaner at a hotel in Woodstock, N.B. On Dec. 29, 2011, Paul was moving a laundry cart on the stairs between floors at the hotel when she slipped and fell down the stairs. In the fall, she injured her left shoulder, left arm, buttocks, and tailbone. Following the accident, Paul’s doctor diagnosed a contusion on her tailbone.
Over the next two months, Paul had difficulty sitting and standing due to her injuries. She saw another doctor in February 2012 who observed these issues and in April a physical medicine specialist determined her lumbar flexion was only 25 per cent.
Paul continued to experience ongoing back pain, chronic pain, anxiety, and depression, and in May 2012 she was given a medical report that stated she had a “sleep disorder which was aggravating her chronic pain syndrome.” The report concluded that Paul needed “a full evaluation with psychology, occupational therapy and physiotherapy as well.”
A few months later, Paul’s family doctor diagnosed her with fibromyalgia — widespread muscle pain and tenderness in the muscle fibres — and also thought she might have depression.
Paul applied for and received worker’s compensation benefits from Worksafe NB, which were suspended at one point and then reinstated in early 2014. On Jan. 14, 2014, the Worksafe NB team managing Paul’s case decided to have her undergo a functional capacity evaluation. However, Paul’s physiotherapist emailed Worksafe NB saying Paul would likely be assessed as not giving full effort on the evaluation due to her various issues and the assessment wasn’t the best way to help Paul move forward.
The evaluation went ahead and the occupational therapist assessing Paul concluded Paul gave a low effort on testing for grip strength, she had an inappropriate heart rate response to activity, negative global effort testing, a lack of objective signs of physical effort, and clinical inconsistencies. The assessor added that the evaluation wasn’t reliable because Paul gave inappropriate responses to a symptoms questionnaire, placebo tests, and functional testing, and she was inconsistent between her perceived ability and her actual function.
The occupational therapist noted that Paul was “pleasant, punctual and co-operative through the testing,” which wasn’t “consistent with the characteristics of someone who does not want to give full effort.” The assessor observed Paul showed “high physical effort” in at least one instance and she used various pain management strategies during the testing. The report also indicated Paul’s scores for numeric and visual pain were consistent and there was no suggestion her low effort was due to “the pursuit of secondary gain.”
Due to the finding that Paul didn’t give a full effort to the functional capacity assessment, Worksafe NB discontinued her benefits. Paul appealed the decision to the New Brunswick Workers’ Compensation Appeals Tribunal, but the tribunal determined that there was “no objective evidence to challenge the findings of the (occupational therapist) that (Paul) demonstrated a low physical effort during the assessment.” Since the New Brunswick Worker’s Compensation Act stipulated that low physical effort during an assessment constituted obstruction, the tribunal upheld Worksafe NB’s discontinuance of benefits to Paul.
Paul appealed the decision to the court, arguing the tribunal erred in law and didn’t consider all the evidence — particularly her testimony on her fibromyalgia and why she couldn’t give a full effort in the testing.
The court noted that the Workers’ Compensation Act and the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act dictated that the tribunal had an obligation to hear the case and “render a determination based on the merits and justice of the case.” However, the court found the tribunal didn’t meet this obligation. The tribunal’s decision made it clear that it only considered what it felt was objective evidence such as the evaluation report. This put the onus on Paul to prove Worksafe NB was wrong, which was an error. Instead, the tribunal should have considered all evidence — objective and subjective — and all the merits of the case to determine if Worksafe NB could prove Paul didn’t give a full effort in her assessment and therefore end her right to benefits.
By shifting the onus on Paul to prove she deserved benefits from Worksafe NB to prove she didn’t deserve them, the tribunal erred in law, the court said. It allowed Paul’s appeal and referred the matter back to the tribunal for a new hearing.
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