Worker v. Employer, 2015 CanLII 32080

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

decision number:

20150046

DECISION DATE:

May 29, 2015

OBJECTING PARTY:

Worker

REPRESENTED by:

Worker Representative

RESPONDENT:

REPRESENTED by:

Employer

Employer Representative

HEARING:

April 30, 2015 – (city), Ontario

HEARD by:

H. Mohamed, Appeals Resolution Officer

ADDITIONAL ATTENDEES:

Lawyer (assisting Worker Representative)

Law Student (observer)

ISSUES

The worker representative on behalf of the worker is objecting to the following decisions made by the operating area:

1. Creation of a recoverable overpayment

2. Denial of psychotraumatic disability

3. Denial of a non-economic loss (NEL) re-determination

4. Termination of supplementary benefits effective May 1, 2010

5. Denial of ongoing entitlement after March 23, 2011 and rescinding the organic NEL award

6. Denial of a 100 per cent Future Economic Loss (FEL) award

The hearing took place on April 30, 2015 but due to time constraints the worker representative and the employer were invited to make their closing arguments by way of written submissions. Both parties provided their written submissions to me by May 14, 2015. The worker representative also provided a rebuttal submission on May 22, 2015 in response to the employer’s closing submission.

Due to the length of the submissions provided, I have entered them into the record as exhibits. I will reference relevant portions of both submissions throughout my decision.

BACKGROUND

On February 21, 1993, this then (age) (job title) was approaching a vehicle (redacted) when suddenly the driver accelerated striking the worker on his right shoulder and hip and throwing him onto the hood of the car. The claim was allowed and entitlement was initially accepted for a right shoulder and low back sprain. The worker was off work for just over a month and then returned back to his regular job.

On March 4, 1996 the worker underwent surgery for lumbar laminectomy and discectomy with a pre-operative diagnosis of lumbar spinal stenosis and spondylolisthesis. After obtaining a medical opinion, entitlement to the surgery was accepted by the operating area. The worker went back on modified duties at an airport with his employer in September 1996.

The worker stopped working in July 1999 due to ongoing problems with his low back. The worker underwent a NEL examination in April 1999 and was granted 33 per cent NEL award for his low back.

The worker participated in a six week pain management program from October to December 2000 and was discharged with permanent precautions of no prolonged sitting, standing or walking; no prolonged or repetitive bending or twisting at the lumbar spine and no repetitive lifting or carrying greater than 40 pounds. The discharge diagnosis was failed back surgery syndrome. At a subsequent booster session, the worker exhibited depressive symptoms and psychological counselling was recommended. The worker was referred to Dr. M, psychologist in September 2001.

The worker went back to work in January 2001 following the pain program but laid off again in August 2001 due to pain.

On November 18, 2002 the worker went back to modified work at the airport. Although he wasn’t involved in any active therapy, he was receiving epidural injections in his low back at the (city) Hospital Pain Management Unit every few months. In February 2004 he stopped working claiming an adverse reaction to an injection and was paid benefits to June 21, 2004. It is unclear when the worker went back to work but he laid off again on August 26, 2005 due to low back problems and went back to work on February 27, 2006. Benefits for this period were also approved by the operating area as outlined in the letter dated August 14, 2006.

The worker laid off again on August 16, 2006 due to ongoing low back pain, lack of sleep and medication issues and benefits were re-instated. A medical opinion determined that the worker needed psychological treatment to assist with his pain. This was approved by the operating area. The worker was also being considered for a spinal column stimulator (SCS) as well as possible surgery. In the meantime the worker remained off work.

In a letter dated April 15, 2008, the worker was advised that he was being granted a sustainable Future Economic Loss (FEL) award and would be receiving a monthly supplementary award of $3,132.36 effective May 1, 2008. The letter indicated that this is the amount he would have received had his employer not been paying him advances. Full supplementary benefits continued to be paid on a monthly basis as the worker was unable to work and continued participating in a medical rehabilitation program.

The worker was seen by a neurosurgeon in November 2008 and a SCS implantation was recommended. The operating area purchased the stimulator for the worker and the worker had the stimulator implanted on September 28, 2009; however, he did not find any relief and had the unit removed on September 30, 2009. The worker remained off work.

On April 15, 2010, the worker underwent a FEL review and again a sustainable FEL award was processed. On April 22, 2010 the worker was told that his employer had modified work available and he was expected to return to work. The worker told the CM that he had no intention of returning to work as he was planning on retiring soon. In a letter dated

April 29, 2010, the Case Manager (CM) explained that the medical supplementary benefits would cease effective May 1, 2010. The worker objects to this decision.

During a conversation with the employer on May 14, 2010, the CM became aware that the monthly supplementary benefits were being paid directly to the worker as opposed to being paid back to the employer since they were paying his full salary as advances since 2008. The CM subsequently inactivated all payments from May 2008 to May 2010 and created a recoverable overpayment of $76,647.48 as outlined in the letter dated May 21, 2010. The worker objects to this decision.

In a decision dated July 14, 2010, the CM denied the worker’s request for a NEL redetermination. In a subsequent decision dated October 28, 2010, the CM denied entitlement to psychotraumatic disability and also concluded that the worker was not totally disabled from working. The worker objects to both these decisions.

Following the May 2010 decision to create the overpayment, the file was referred to the Regulatory Services Division (RSD) and a period of surveillance was recommended to see what the worker’s true capabilities were. Surveillance was conducted for 6 days in March and April 2011, including April 21, 2011 when the worker had attended the WSIB office for his Appeal hearing. It was noted that in March the worker presented less disabled than he did when he attended his Appeal hearing.

In a letter dated February 25, 2011, the operating area confirmed entitlement was limited to a sustainable FEL award on the grounds that the employer continued to have suitable modified work available. The worker objects to this decision.

An Appeal hearing took place on April 21, 2011 however following the hearing the surveillance evidence came to light and as such, the worker representative requested that the appeal be withdrawn so that the surveillance information could be reviewed.

After reviewing the surveillance evidence, the CM concluded that not only was the worker partially disabled but had fully recovered from his low back injury and was capable of returning to his pre-accident job. The CM rescinded the worker’s 33 per cent NEL award. This was outlined in the decision dated May 20, 2011. The worker objects to this decision also.

In September 2012, the worker entered into a contractual agreement with the WSIB to repay the overpayment in lieu of the changes being laid.

AUTHORITY

Pre-1997 Workers’ Compensation Act

Operational policy:

18-04-04 - Reviewing FEL Benefits (Prior to Final Review)

11-01-05 - Determining Maximum Medical Recovery (MMR)

15-04-02 - Psychotraumatic Disability

18-05-09 - Redeterminations and Recalculations

18-04-11 - Supplement for Programs and LMR plans Before and After 24 Months

22-01-02 - Material Change in Circumstances

22-01-09 - Surveillance

11-01-08 - Audio/Visual Recordings

18-01-04 - Recovery of Benefit Related Debts

EXHIBITS

• Exhibit 1 – Photograph of collapsible stool/chair and pivot seat

• Exhibit 2 – Closing and rebuttal submissions provided by the worker’s representative

• Exhibit 3 – Closing submissions provided by the employer

ANALYSIS

In arriving at my decision I have considered the information in the claim file, the submissions made by the worker representative (WR), the employer, the worker’s testimony as well as the relevant sections of the Workers’ Compensation Act (the Act) and the appropriate Operational Policies.

1. Creation of the overpayment

After carefully reviewing all the evidence presented to me I am satisfied that the overpayment is fully recoverable. I have arrived at this conclusion based on my rationale outlined below.

The worker representative essentially argued that the worker should not have to repay the debt because the worker could not have reasonably been aware that the WSIB made an administrative error.

The worker testified that he recalls receiving a letter from the WSIB telling him he would be receiving a supplement but he didn’t understand the letter. He then received a supplement cheque in the mail and he did not cash this cheque immediately as he didn’t understand what the cheque was for and so he contacted his CM. He said that he spoke to the CM and he was advised that he would be entitled to receive this cheque and so he cashed it. The worker said that his understanding of the word “supplement” is in addition to what he is getting.

The worker advised that he received monthly cheques which were mailed to his sister’s house, where he was also residing, and they were being deposited by his girlfriend, and if she wasn’t able to do this then he would sometimes deposit them also. The worker stated that he wasn’t getting a monthly bank statement mailed to his house at that time, though he does now. The worker stated that when he received his first supplement cheque he didn’t cash it for a month because he wanted to make sure he was entitled to it and wanted to discuss it with his CM. The worker stated that the CM told him he was entitled to it so he then cashed it.

The worker testified that in April 2008 he was receiving his regular bi-weekly pay from his employer direct-deposited in his account however he never got a paystub. He said that his paystubs went to the courthouse which was his last place of employment. He stated that prior to April 2008 he had received monies from the WSIB in the form of a NEL payment and mileage cheques. The worker said he wasn’t sure if he had requested a NEL award before but he did recall asking for a NEL reassessment sometime in 2009/2010 after he was taken off work.

The worker testified that he became aware of an irregularity when he went to get his taxes done in 2009 and was advised by his accountant that he was missing a form that needed to be submitted to Revenue Canada The worker asked his accountant to file the taxes anyway and he would try to get the form. The worker advised that he contacted his employer and spoke to someone named S.M. about needing a form and was advised that everything was fine and he didn’t need to be concerned. The worker said he didn’t worry about it anymore. The worker stated that the next tax year (2010) he was again advised by his accountant of the missing form and again he said he will contact his employer and figure it out. He then contacted his employer again about the T4 discrepancy and he never got any answer from them. Within a few days he was contacted by the CM and advised about the overpayment.

The worker stated that when the CM called him about the overpayment, she called him a “thief” and that he had “defrauded” the WSIB. The worker said that he tried to explain that he had received a letter and was told by the previous CM that he was entitled to the money. He said that he did tell the CM that he would pay back the money if it was not meant for him.

It was noted that initially the worker stated to his CM that he thought the cheque represented his NEL payments as noted in memorandum 156. The worker unequivocally denied this stating that he never used the word “NEL” and said he didn’t know and still doesn’t know what a NEL is and argued that the CM may have written NEL but he never once used the word NEL. The worker explained that he is unfamiliar with all the acronyms that were frequently used like NEL, FEL and Supplement. During questioning by the employer regarding his knowledge of NEL, the worker repeatedly stated that he didn’t know what a NEL was and asked the employer to explain it to him. The worker was asked about the NEL decision letter dated July 16, 1999 which asked him to make an election between monthly payments or a lump sum payment. The worker acknowledged that he did make the lump sum selection but he didn’t know what it was.

The WR submitted that that the worker did contact his CM following the April 15, 2008 letter to request clarification as documented in memorandum, 130. The worker did not know the difference between a NEL and FEL and all he was interested in knowing is whether he was entitled to benefits or not. She argues that the worker did not know how much money was in his account and his girlfriend did all his bank deposits for him and his children had access to his accounts. He did not receive statements from the bank as verified by the letter from the bank dated February 22, 2011.

She states that the worker did contact his employer to verify the irregularity identified by his accountant while preparing his taxes in 2009 and 2010 and was advised by his employer that everything was fine.

She notes that based on the WSIB payment screens she received through access, the CM clearly made an error by failing to identify that advances were being paid by the employer and that both the WSIB and the employer were aware that the worker was receiving supplementary benefits directly.

The WR requested that the overpayment be made non-recoverable on the basis that the worker did not understand that he was not entitled to receive these benefits and should not be held responsible for the errors made by the Board. Moreover she argues that the employer would have received monthly statements from the WSIB and should have noticed the error a lot sooner. She states that the worker did everything a reasonable person would do in his situation. He called his CM to clarify entitlement and he called his employer on a few occasions to reconcile irregularities in his taxes.

The employer argues that the evidence supports that the worker was aware, or should reasonably have been aware, that he was being overpaid. The employer argues that there is no proof that the worker did not understand what a NEL award was especially when considering that he specifically requested a lump sum pay out for his NEL in 1999. There are no contemporaneous memorandums from 1999 to indicate that he ever called requesting an explanation of these benefits. The employer argues that the this debt is fully recoverable and any decision to forgive the debt due to any undue hardship must not contravene policy 18-01-04 and the onus must be placed on the worker to prove any financial hardship.

The employer also notes that the CM noted in her memorandum dated May 14, 2010 that the worker stated that he thought he was receiving his NEL benefit. The CM uses the phrase NEL a number of times in that memorandum and even makes specific reference to a story of a friend who is receiving a NEL payment.

In response to the employer’s submissions, the WR acknowledges that although the worker requested a lump sum payment with regards to his NEL award in 1999, this does not mean that the worker understood what NEL meant.

The WR also referenced a number of WSIAT Case Law (Decision 1258/03, 1353/09, 1151/98I, 1758/06) to support her position that the debt should not be recovered as the worker could not have reasonably been aware.

In arriving at my decision, I have considered policy 18-01-04 titled “Recovery of Benefit related Debts” which states that the WSIB pursues full recovery of a benefit-related debt resulting from an administrative error when the debtor was aware or should reasonably have been aware of the error.

There is no dispute in this case that the worker was paid erroneously by the operating area for a period of nearly 2 years. The worker was granted medical supplementary benefits from

May 1, 2008 but was also being paid full advances by his employer. The error was discovered in May 2010 and a recoverable overpayment of $76,647.48 was created. There is no evidence of any misrepresentation by the worker and clearly the worker was an innocent party in the creation of this error.

The pivotal issue that needs to be determined in this case is whether the worker was aware or should have reasonably been aware that the payments he was receiving were due to an administrative error. In making this determination it is extremely important to consider the contemporaneous documentation leading up to the time the supplement was processed as well as when the error was discovered.

Memorandum 102 confirms that the worker had been off work since August 2006 due to a reoccurrence however payment since then had not been processed. According to the payment screens the employer was paid directly and nothing was sent to the worker. On February 13, 2007, the worker spoke with the Nurse Case Manager (NCM) regarding a NEL redetermination. The NCM documents the following in memorandum 107:

“(The worker) is of the opinion that he is totally disabled. He indicated he is close to retirement and has continued to be off work because of flare-ups. He also asked about a NEL redetermination. I explained to client that current medical information requested is for claims to review his file to see if he has reached a plateau and flare-up is resolved. If he has reached a plateau then claims will determine if he is below his NEL level. Claims may ask MC to comment if necessary. If he is below his NEL level then claims will review for NEL redetermination. Informed client he needs to be a 60% NEL to obtain an additional allowance to help with ADL (activities of daily living)”

In memorandum 128 dated March 25, 2008 the worker again asked about his NEL and was again advised by the NCM that his condition needed to plateau before a NEL redetermination would be considered.

The CM conducted a FEL D1 (Initial determination) review on February 25, 2008 (memorandum 128) and processed a sustainable award effective March 1, 2008 noting that full advances were being paid by the employer. The FEL decision was communicated to the worker in the letter dated April 15, 2008. The letter stated that the worker was entitled to a medical supplement so long as he participated in a WSIB approved medical rehabilitation program. The letter then goes on to state:

This supplement plus your FEL benefit equals 90% of your net earnings before you were injured. I have approved the supplement up to September 1, 2008 when I will review it. In summary, your benefit will be:

• The FEL payment of $0

• Pus the supplement of $3132.36

• Totalling $3132.36 per month.

Your employer continues to pay you directly; had you been receiving benefits from the

WSIB you would begin to receive monthly cheques.

The worker next contacted his CM on May 6, 2008 and is documented in memorandum 130. The CM notes the following with regards to his discussion with the worker:

“The worker called today to discuss a recent letter regarding FEL D1 decision. He indicated that he is taking a lot of medication and has difficulty understanding FEL benefits when his employer is paying full advances. We discussed at length and he now understands the difference between advances and FEL benefits.”

The worker testified that he was unsure whether the conversation with the CM to cash his supplement cheque occurred on May 6, 2008 or in a later undocumented conversation.

The CM assigned to the worker’s claim at the time of the supplement creation, provided a detailed statement to the RSD investigator once the error was discovered and the matter was referred to the RSD. The CM was questioned by the investigator on June 6, 2011 and asked whether he had any conversations with the worker following the April 15, 2008 letter. I note the following response provided by the CM on page 15:

“I also have a memo because we were kind of talking, I’m just remembering these conversations that I had with him, the NEL verses FEL and I found memo number 130 dated May, so this is a month or so after we implemented the FEL benefit and typically I don’t, when I have these conversations, there’s a lot of these things that are just done automatically so in all cases we explain benefits and so on and we don’t necessarily put it into memos and the only time we’ll put it a memo is if a big deal was made about it so a lot of explanations from A to Z was required and that’s exactly what I wrote down in my memo 130 where there’s that first section where I’m explaining to him the difference between FEL benefits and advances and the fact that the money is being paid to his employer so we had a longer conversation. It was so long that I felt it was necessary to put four lines in a memo to describe this, this fairly long conversation about what was what and where the money was coming from.”

On August 18, 2008, the file was transferred to a new CM who extended the worker’s supplement in November 2008 as per memorandum 137. There were no further documented conversations regarding benefits; however, it appears that the worker was contacted in order to obtain updates on his upcoming surgery. In memorandum 153, the worker was advised that his supplement would end on May 1, 2010 as the CM felt the worker was partially disabled and that the employer had modified work available. In memorandum 155 the CM spoke with the employer regarding termination of the medical supplement and at this point was informed that the worker was being paid by his employer.

The CM spoke to the worker on May 14, 2010. The conversation is documented in memorandum 156. The worker was asked by the CM whether he had been receiving a supplement as well as his regular pay and he confirmed that he was receiving both. When asked why he did not report this to the WSIB the CM documents the worker’s response as follows:

“I was under the impression that it was my NEL benefits. I had no idea that it was not for the NEL. I really thought it was my NEL benefit.”

The CM asked the worker a number of times, according to the memorandum, about how he could have thought the monthly payments were a NEL award when he had already received a $20,031 cheque for his NEL in 1999. The CM notes that since being off from 2006 his employer has been paying him advances when all of a sudden he receives a NEL benefit cheque in May 2008 makes no sense. The worker’s response is documented as follows:

“I didn’t know. There is no malice on my part. I am not denying that I have to pay you back but with all the stress, my marriage breakdown, psychological issues I did not have a clear mind.”

The CM pressed the issue further and asked why he never asked for clarification on this. The worker’s documented response was:

“Because I really thought it was my NEL cheque. My Buddy of mine also receives a NEL cheque every month in the amount of $1600.00”

The worker testified that he made no reference to the word NEL since he still doesn’t know what a NEL is and that the CM assumed he was talking about a NEL and he cannot control what the CM wrote.

In weighing the evidence, I did not find the worker’s testimony with regards to his limited understanding of NEL to be credible. I also believe that the evidence supports that the worker most likely did use the word NEL in that conversation. The contemporaneous file documentation strongly indicates that the worker knew what a NEL was and had spoken to the NCM about it on a few occasions when requesting a redetermination.

As early as November 1998, the worker knew what a NEL award was and had specifically requested this. As documented in memorandum 22 dated November 25, 1998, it is noted that the worker called the CM directly enquiring about entitlement to a NEL award noting that the surgery on his low back had left him with permanent problems. It can be deduced from this very early memorandum that the worker not only knew about the concept of a “NEL award” but also understood that it was related to having a permanent problem or impairment.

The worker was granted a NEL award in 1999 and went through a whole process of selecting a roster physician and undergoing a NEL assessment. Once his NEL was rated he was also sent a letter advising him whether he wanted to receive the NEL payment as a lump sum payment of $20,031.14 or whether he wanted to receive a monthly payment of $121.25. The worker wrote to the NEL Clinical Specialist (NCS) on July 28, 1999 and selected a lump sum payment. In fact prior to this letter, the worker called the NCS on July 27, 1999 (Memorandum in the NEL section of the file) with regards to his disagreement with the NEL award on the basis that he felt his sensory deficit should be rated higher.

The worker has never had a prior claim and his only experience with the NEL process was in 1999 when he opted to receive a one-time payment instead of a monthly payment. I notice that no calls were made to the CM or the NEL clinical specialist around the time of his original NEL award to question what the NEL award was for or why he was receiving it. This contradicts the worker’s insistence at the hearing that he didn’t know what a NEL was, to the extent that when the employer asked him a NEL question he quickly stated that he didn’t know what that was.

The worker’s initial argument to the CM in May 2010, which he is now disputing, was that he thought this was a NEL payment. In addressing this explanation, I find that the worker would have been fully aware that this was not a NEL payment since the letter of April 15, 2008 made no reference to a NEL. Given the worker’s prior NEL experience of having to select a roster physician, going for a half day assessment, making a selection between a lump sum and monthly payment, I would expect a reasonable person to question why none of these interventions occurred a second time, if indeed this was a “NEL” payment. Moreover, the previous NEL decision letter presented him with an option of a $121.25 monthly payment. The supplementary cheques were significantly higher than this amount and any reasonable person would have realised that this was not a NEL payment. In my view, the worker’s excuse that these monthly cheques represented a NEL payment is weak at best. I think the worker realised how weak this argument was and therefore provided an alternative explanation at the hearing.

The worker’s new explanation at the hearing was that he knew it was a supplement payment -not a NEL - but in his mind a supplement means “in addition to” what he is already receiving. Since he has no knowledge of anything WSIB related, he presumed that he was entitled to these payments. Moreover, he stated that he was advised that he could cash the cheques by his CM.

Before addressing this argument it is important to note that since the commencement of the worker’s claim in 1993, the worker had only received a total of four cheques from the WSIB prior to the first supplement cheque. The four cheques are as follows:

• Mileage expense payment for $62.65 in April 1996

• NEL award in 1999.

• Mileage cheque for $433.06 in December 2000

• Mileage cheque for $557.16 in March 2007 for $557.16.

Aside from the NEL cheque, the other three cheques were for expenses which he was expecting to receive since he had completed corresponding travel expense forms. It is evident that the worker was not accustomed to receiving monies from the WSIB and all lost time payments came directly from his employer.

This all changed in late May 2008 when he received his first supplement cheque. According to his testimony he waited a month before cashing it. It is noted that the first cheque was dated May 30, 2008 and was deposited on June 12, 2008. Whether he waited a month or two weeks, the fact remains that the worker knew something was amiss otherwise he would have simply deposited the cheque the moment he received it. The worker testified that he called the CM around this time period and was told that it was his cheque and he could cash it. I do not accept this portion of the worker’s testimony since there is no evidence on the file to support that the worker was ever advised to keep his cheque or that he called the CM once he actually received his cheque. I do not dispute that prior to the release of the first cheque, the worker had spoken to the CM as documented in memorandum 130 however according to that memorandum the worker was explained the difference between a FEL benefits and an advance. A few weeks following this conversation he was issued the first supplement cheque. There is no memorandum between the worker and the CM around the time he deposited the cheque, which was on June 12, 2008.

It cannot be stressed enough that the worker never once mentioned during his conversation with the new CM on May 14, 2010 that he was advised to keep the cheque by the previous CM. He never stated that he had called his previous CM and requested clarification. In fact the CM asked him this very question in memorandum 156 and the worker simply stated that he thought it was his NEL and he thought he was entitled to it. The worker wrote a letter to the file dated June 5, 2011 complaining about his CM. This letter is interesting because again he doesn’t mention that he was verbally advised to keep the cheques. The only thing he states on page 5 of this letter is that he “received a letter stating that I was entitled to those cheques.”

The contemporaneous documentation provided by the employer B.C. is also very important to consider. In his hand written entry notes around the time of the discovery of the overpayment, B.C. notes that the worker called him and was upset at the way his CM had spoken to him. At no point, according to his notes, did the worker state to B.C. that he was advised by the CM to cash the cheque. In fact the worker stated that he thought it was a NEL cheque, which corroborates what he told the CM, and that he didn’t know he was getting double paid.

It is noted that the worker agreed to enter into a settlement with the WSIB legal department to repay the debt on a monthly basis. According to the file it appears he chose not to give a cautioned statement to the RSD investigator prior to entering into this agreement. The worker also told the CM in memorandum 156 as well as B.C. that he would be paying the overpayment back. In my view this supports that the worker knew he was not entitled to the monies he had been receiving.

I find it odd that he never contacted his CM or anyone at the WSIB regarding the income tax irregularity that was brought to his attention by his accountant. Given that the worker only ever received 4 cheques from the WSIB in over 15 years prior to the issuance of the monthly supplement cheques, a reasonable person would have thought the “irregularity” must be related to the monies he was getting from WSIB.

At the hearing the worker stated that the employer WSIB co-ordinator B.C. was difficult to reach and he was unable to speak with him regarding the irregularities. However in the statement provided by B.C. to the RSD investigator, he stated that he had very long conversations with the worker that would last 30-45 minutes where he would talk to him about all that was going on in his medical rehabilitation. Yet B.C. stated that the worker never mentioned any T4 irregularity to him and stated that the worker’s letter of June 5, 2011 was incorrect. B.C. also told the investigator that when he spoke to the worker on May 28, 2010 regarding the overpayment, he stated that he was not aware he was being paid by both sources and then stated that he thought that the $3200 cheque was a NEL payment.

The worker also explained at length that he didn’t look at his bank accounts and that his girlfriend or friend deposited his cheques. He also stated that no bank statements were ever sent to him. The worker stated that at some point his employer started a direct deposit system for his pay as opposed to receiving a cheque but he could not recall when this happened. He stated that he would receive paystubs to his work location and they were not mailed to him so he did not know he was getting paid by his employer. I am assuming that the reason for going through this was to persuade me that he was unaware that he was receiving both WSIB pay as well as direct deposit payments from his employer.

I find it hard to accept that for a period of two years the worker was unaware of his financial situation and never checked his bank balance especially since he testified that he had to make child support and spousal support payments following his divorce in 1999. Besides, his cheques were being mailed to the (city) address and his girlfriend lived in (city), about 30 kilometres away. Also, according to memorandum 156 when the worker was asked about the overpayment he immediately stated that he was receiving both his pay and WSIB cheques without hesitation. This doesn’t sound like someone who doesn’t know their financial situation. Besides, memorandum 101 as well as the surveillance evidence supports that the worker is not bed ridden and is capable of driving and getting around. I do not accept that the worker had his girlfriend do all his banking and was clearly aware that he was receiving these cheques for the entire two year period.

I am confused with the various explanations provided by the worker with respect to why he shouldn’t have to pay back the overpayment. Initially he advised the CM and the employer contact B.C. that he thought it was his NEL payment which he was entitled to. He later told B.C. that since he never received his pay-stubs from the employer he didn’t know he was getting paid twice. He then stated that he was oblivious to all financial transactions in his bank account and therefore was unaware of what money was being deposited and where it was coming from. At this hearing he stated that he never said that the payments he received were his NEL payments but rather a supplement which he thought means “in addition to” his regular pay.

To accept the worker’s argument (and there seem to be many different variations of them) that he was unaware of the error, requires me to make an unreasonable number of assumptions which I am unprepared to make. For instance:

1. I have to assume that the initial CM failed to explain the difference between a FEL payment and advances even though he documented that he did in memorandum 130

2. I have to assume that the worker called the CM about the cheque and was told he could cash it even though that very same CM had clearly indicated in his letter that the employer was paying advances and documented in his previous memorandum the difference between a FEL and advances.

3. I have to assume that that this CM forgot to document this all important conversation in the claim file.

4. I have to assume that the worker did not know he was receiving monies from both the WSIB and his employer because all the banking was done by his girlfriend and he was oblivious to all monetary issues around him for the two years in question despite being responsible for child support and spousal support payments which would require some level of financial knowledge and awareness.

5. I have to assume that the new CM inadvertently included the term “NEL” into her memorandum of May 14, 2010 when the worker actually never said NEL at all.

6. I have to assume in that same discussion, the CM made up the story about a friend of the worker’s that was receiving $1600 in NEL payments.

7. I have to assume the worker doesn’t know what a NEL is even though the evidence on file supports that he initially asked for his NEL award in 1998, underwent the NEL process, made a lump sum selection and subsequently requested a NEL redetermination on a number of occasions from the NCM.

8. I have to assume that B.C’s notes provided to the RSD investigator that the worker thought the payments represented a NEL payment are also incorrect and a fabrication because the worker never used the word “NEL”

I however prefer the simpler and more logical explanation that is more or less consistent with the known facts which is that the worker cashed the cheques because they were mailed to him and since no one questioned him about them, he kept depositing them. In my view, the evidence is quite persuasive that the worker either knew or ought to have known that the payments he was receiving from the WSIB were in fact an error. He made no attempt at contacting the CM in over two years regarding his payments.

I have reviewed the WSIAT case law provided by the WR and I note that each of those cases presented with their own unique circumstances. Interestingly, none of those cases were schedule 2 workers who received advances. In all the cases that were referenced, the workers were already in receipt of WSIB benefits for many years and were accustomed to receiving those benefits. In this case, as already outlined, the worker was not accustomed to receiving anything from the WSIB and therefore it would have been more than reasonable for the worker to have contacted his CM to clarify what he was receiving and why. The worker testified that he did call and did get approval but the evidence indicates that this occurred “before” he received his cheque and not after.

In my view, workers who receive advances have a greater responsibility to ascertain that the monies they receive are correct. I realise that the WSIA does not place any additional responsibility on worker’s who receive advances verses those who don’t but it is reasonable to state that those receiving advances are being paid fully and are not experiencing any reduction in their pay. Any additional payments would, from a reasonable person point of view, necessitate further enquiries and clarification. There is no evidence presented that the worker called the WSIB “after” receiving his first supplement cheque.

Accordingly, I find that the worker knew, or ought to have known, that the payments he was receiving were in error and therefore the overpayment is fully recoverable.

2. Entitlement to psychotraumatic disability

After carefully reviewing the medical evidence on file along with the worker’s testimony, I am not persuaded that the worker has entitlement under the psychotraumatic disability policy.

Policy 15-04-02 provides for entitlement for psychotraumatic disability resulting from a work-related injury, providing the psychotraumatic disability/impairment became manifest within five years of the injury, or within five years of the last surgical procedures. Psychotraumatic disability/impairment is considered to be a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition.

Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop:

I. Organic brain syndrome secondary to

o traumatic head injury

o toxic chemicals including gases

o hypoxic conditions, or

o conditions related to decompression sickness.

II. As an indirect result of a physical injury

• emotional reaction to the accident or injury

• severe physical disability, or

• reaction to the treatment process.

The psychotraumatic disability is shown to be related to extended disablement and to non-medical, socio-economic factors, the majority of which can be directly and clearly related to the work related injury.

The worker testified that he has a grade 12 education and was hired as a (job title) in 1981. The worker advised that he had won a number of commendations over the years for bravery. Prior to his workplace injury he rarely took any sick time. He was healthy and at the top of his career. He said he was athletic and was a devoted father and husband.

The worker explained the accident history in detail which will not be repeated since it is documented in the case record and is not disputed. Following the accident he was off for about a month. He came back to work on his regular work duties as a (job title) but was having difficulties. He was able to continue with his regular duties until he had surgery in 1996. Following his surgery he went back to work as a (job title) and then applied for a job at the airport as this job was easier for him since there was minimal driving involved.

The worker testified that in 1999 he separated from his wife. He was extremely emotional when describing the break-up of his marriage and the effects that it had on his family. He attributed the breakup of his marriage to his injury claiming that he was no longer the man he was and was no longer able to do the things around the house or with the kids and as a result he broke up with his wife. He said the break-up was the hardest thing he has had to go through in his life. He went to marriage counselling but that didn’t help. He said he told his doctor about what was going on and was referred to a psychologist. He advised he has seen numerous psychologists including Dr. M whom he found helpful. He explained that he has been depressed since 1999 and that the gaps in medical reporting are due to his belief that he was able to handle this without professional help. He denied any other reason for the marriage breakup other than his wife being tired of his inability to do things around the house.

He stated that he only sleeps 2-3 hours a night and has been on sleeping medications since 1995. Lack of sleep has impacted his concentration and focus and constantly feels tired.

Following the split he moved in with his sisters and also stayed with a friend while his wife stayed in the matrimonial home.

Following his layoff in 2006, he was seen by a psychologist and told him that he didn’t think he was struggling with depression. He said he only said this because as a (job title) he is expected to be “big and strong” and he thought if he said this then his employer would put him back to work, which is what he wanted all along.

The WR argued that the worker’s injury has had a significant impact on his personal and family life and was diagnosed with major depressive disorder by the Functional Restoration Program (FRP) in October 2000. He was referred to Dr. M and was also seen later by Dr. L and although he stated to the latter doctor that he did not think he was depressed, the worker testified that he was trying to remain stoic. The medical evidence supports that the worker has been suffering from sleep deprivation and depression since 2001 and these symptoms have become worse since his last surgery.

In reviewing the file record, I note that in March 2000 the worker started complaining of left leg pain and stated that he was having difficulty sleeping as noted in Dr. K’s progress report dated May 8, 2000. Due to the worker’s ongoing pain and sleep issues, he was referred to a pain clinic (FRP) in October 2000.

The FRP intake assessment report dated October 31, 2000 notes that contrary to the worker’s testimony his marriage ended in 1997 and that he subsequently became involved in a two year relationship with another woman. The report notes that the worker’s mood was good. The report notes that the worker endorsed a myriad of affective and vegetative indicators listed on the Beck Depression Inventory and his self-reporting scores placed him in the “severe depression” range. The worker was provided with a DSM-IV diagnosis of:

• Pain disorder associated with both psychological factors and a general medical condition

• Major depressive disorder

In the two week progress report noted that the worker was doing well and his mood and affect were noted as being good. The worker was described as being talkative, pleasant and insightful. The discharge report noted that the worker had done very well in the treatment program and impressed as pleasant, helpful and sensitive to others’ needs and feelings. It was noted that his major stress was not having quality sleep at night. He denied depression or feeling stressed out. The worker was administered another psychological questionnaire and the results were normal. The discharge diagnosis was a pain disorder with general medical condition (failed back syndrome). The diagnosis of major depressive disorder was removed.

At the FRP booster session dated May 22, 2001 it was noted that the worker had become more stressed since returning to work and was open to counselling to address his issues.

The worker spoke with the NCM in September 2001 (memorandum 66) and advised that he was having sleep issues and difficulty coping with the pain. With regards to his marriage break-up, the worker stated that his wife was afraid of the surgery and side effects and his inability to participate in regular activities with his children was very hard on his marriage. The worker was referred to a psychologist by the NCM.

The worker was seen by Dr. M on October 2, 2001 and was diagnosed with a pain disorder, medical factors, chronic. Dr. M queried the diagnosis of depression and felt this required further inquiry. The worker’s GAF score was rated at 62 and weekly therapy sessions were recommended. In her December 13, 2001 report she recommended 10-12 additional sessions which the worker completed by August 2002.

The worker was seen by Dr. S at the Pain Management Unit at (city) General Hospital in February 2002 and continued to see her every few months for epidural steroid injections in his low back. In her report dated September 21, 2005, she noted that the worker was feeling depressed. This report also noted that the worker was complaining if urinary issues for over a year.

An urologist notes in his report of October 11, 2005 that the worker has hypospadias and has been suffering from a weak urine stream for quite some time and that he has nocturia five times a night. Surgery to correct the problem took place on December 14, 2005.

Dr. S observed in her December 1, 2005 report that the worker appeared depressed and his mood was very low with complaints of forgetfulness and impatience. In her January 2006 report she notes that the worker has an appointment with Dr. MN on February 2, 2006. Her progress reports throughout 2006 noted that the worker continued to complain of insomnia and depression.

Dr. MN completed a Progress Report (Form 26) on March 8, 2006 noting that the worker was suffering from a major depressive episode and was prescribed Remeron and vitamin B12.

Dr. MN expected full recovery from the depression within 1-2 months and noted that there were no psychological restrictions. Dr. MN’s full psychiatric report is not on file.

The worker was assessed by Dr. L, psychologist on November 1, 2006. Dr. L notes that the worker complained of low back pain as well as left hip and thigh pain. He rated his pain at 7 out of 10. In addition to pain, she noted that the worker was suffering from severe insomnia which developed due to the pain experience and he needs to take sleep medication. The worker stated that sleep significantly affects his memory. She notes that the worker separated from his wife in 1998 and that the breakup was the most difficult experience of his life. She notes that the worker had seen a psychologist in 1998 to help him deal with the separation as well as the impact of the injury on his breakup (there are no psychological reports on file from 1998). She noted that the worker became quite tearful when speaking of the distance he feels between him and his daughters. Dr. L noted that the worker does not feel like he is struggling with depression and denies any current symptoms anxiety, agitation or panic. She provided a diagnosis of pain disorder associated with both psychological factors and a general medical condition. She recommended therapy.

It is documented in memorandum 101 dated January 11, 2007 that the worker was stressed because of a recent death in the family, ill spouse and a mother-in-law in hospital whom he visits on a daily basis. It was also noted that the worker was referred to a sleep clinic at (city) Hospital on March 27, 2011.

Dr. Pritchett, medical consultant reviewed the file with regards to the worker’s organic injury. He noted in his memorandum dated January 15, 2007 that the worker should receive psychological counselling before any return to work is considered.

Dr. L’s progress report of March 30, 2007 notes that the worker’s pain is the primary cause of the worker’s insomnia and depressed mood. She notes that the worker was unable to sleep at a recent sleep study. She concludes that insomnia is contributing severely on his current mood and concentration difficulties. She notes however that the worker did not present with any significant symptoms of depression or anxiety. She confirms her previous DSM-IV diagnosis of pain disorder. She also confirmed these findings to the NCM as noted in memorandum 111.

The NCM spoke to the worker on June 12, 2007 and he advised that he couldn’t see what could be accomplished with further psychological treatment. He noted that he is coping under the circumstances and his mood was stable. The worker was given the option to recommence psychotherapy any time he wanted by contacting Dr. L. The worker never contacted Dr. L after this date and Dr. L provided her discharge report on June 5, 2007.

The NCM spoke with the worker again on September 26, 2007 (memorandum 121) and again he was advised that he should call Dr. L if he needs psychological treatment but the worker advised he was coping fine and will call if he needs to.

Dr. S’s report of April 29, 2008 states that the worker has been a patient of the (city) Hospital Pain Clinic for many years and suffers from severe chronic pain and insomnia due to failed back surgery syndrome. She recommended that the worker proceed with a trial of spinal cord stimulation and that if this is successful she would recommend implantation surgery. She noted that the worker did not need a psychological assessment for this procedure and there were no psychological contraindications for him to have this procedure.

The worker subsequently went on to have SCS surgery on September 28, 2009 however the surgery was not helpful as documented in memorandums 150 and 151 and the worker asked to referred back to see Dr. S.

Return to work discussions started to take place around April 2010 according to the file and the worker maintained that he was disabled from returning to any employment and also indicated that he was planning on retiring soon. A letter was sent advising him that his supplement would stop effective May 1, 2010. Shortly after these discussions, the CM became aware of the overpayment.

The worker then retained a representative with regards to dealing with the overpayment issue and the termination of the supplement in June 2010 and within a few months of the representative’s involvement he was referred back to Dr. M (psychologist), someone whom he had not seen in over 8 years.

Dr. M’s report of August 23, 2010, addressed to the worker representative, notes she previously saw him in 2001 and 2002 and that since then the worker has claimed that his symptoms have worsened. He is suffering from severe insomnia due to pain. She notes that he appears disabled from working due to severe pain, cognitive impairment in memory, attention and concentration. She notes he is unable to manage his own affairs such as banking. She provides a diagnosis of Pain Disorder, Adjustment Disorder and Major Depression.

Interestingly, this report makes no mention of the fact that he was sent legal demand letter requesting him to reimburse over $76,000 and that his benefits had recently been terminated. I agree with the CM that this report is a significant departure from all previous reports and it also seems that the worker never advised the psychologist of the impact of the significant debt hanging over him. It is worth noting that the primary reason he retained the representative was to deal with the operating area decision to create an overpayment. I realise that other issues were subsequently included but the worker never had any concerns with his supplement being stopped as indicated by memorandums 153 and 154. So I find it odd that when he sees Dr. M he fails to explain all of this. As an aside, I find it intriguing that the worker made a point of making sure Dr. M knew about his difficulties with banking. I am presuming this was something the worker wanted to emphasise considering his upcoming hearing regarding the overpayment issue since no other report has ever mentioned this.

There are a number of psychological reports after this date from the (city) General Hospital and there is also a report from Dr. R dated July 2014. This report notes the following on page 2:

“He now presents with numerous psychological psychiatric symptoms both as a result of the sequelae of insurance and WSIB for monetary compensation that he believes is due to him. In this circumstance it is difficult to discern what has the worst detrimental effect on his mental well-being – his physical injuries or his ongoing battle and the adversarial process with which he’s become embroiled, consequently.”

Having had the benefit of reviewing the entire claim file, I do not dispute that the worker has suffered emotional issues related to his injury but these would not constitute a permanent psychological impairment. I cannot ignore that the worker cried during the hearing recalling how his divorce and losing his children and home were the most stressful event in his life. Yet there is little to no mention of any of this information in the psychological reports on file and no doctor has listed his divorce on Axis IV of the DSM-IV diagnosis. There is no mention of the financial impact of paying child support or spousal support. The fact that the worker had to leave his matrimonial home and live with his sister could not have been easy and yet this is not mentioned anywhere. The reports after the creation of the overpayment make no mention of the substantial debt the worker finds himself in. All of these are significant co-contributors to his psychological condition and yet they are not mentioned. This makes me place less weight on the reports after the creation of the overpayment.

It also appears that the worker was seen by a psychologist in 1998 following his divorce and yet these reports are not on file.

It is important to note that many of the reports mention severe insomnia as a significant contributor to the worker’s depressive symptoms. Yet there is no entitlement decision made by the operating area as to whether this medical condition is related to the compensable injury and one has never been requested by the worker. A polysomnogram (sleep study) from

March 27, 2007 noted that the worker only slept for 18 minutes with observed restless legs. Dr. Dales recommended a second study but it is unclear whether this was ever done. Since no entitlement decision has ever been made for the diagnosed insomnia condition, I must assume for the purposes of this appeal that this is a non-compensable condition.

The fact remains that up until the creation of the overpayment the worker was not in need of any psychological help or treatment. Even when the operating area persuaded the worker to attend treatment with Dr. L he would state that he didn’t think it was helpful and stopped attending. Following the creation of the overpayment the worker sought legal representation and then was sent back to seek psychological help.

It is worth noting that the diagnosis of major depression was ruled out by both the FRP and

Dr. L. The worker was last diagnosed with major depressive disorder by Dr. MN in 2006 but he clearly indicated that this would resolve in 1-2 months. Subsequent reports by Dr. L confirm that the worker was no longer suffering from major depressive disorder. Following the adverse decisions made by the WSIB in May 2010, the diagnosis of major depressive disorder was again added to axis 1. There is no entitlement to psychotraumatic disability as a result of adverse or administrative decisions made by the operating area. I make no finding whether the worker has entitlement to a pain disorder since this diagnosis is usually administered under the Chronic Pain Disability (CPD) policy and entitlement to CPD has not been requested.

Based on the totality of the evidence I am not persuaded that the worker has entitlement to a permanent impairment under the psychotraumatic disability policy.

3. NEL redetermination

In reviewing the evidence, I am not persuaded that the worker has deteriorated below his 33 per cent NEL level.

Policy 18-05-09 titled “Redeterminations and Recalculations” notes that the WSIB may consider a worker’s request for a redetermination of his/her existing NEL benefit provided that the worker's degree of permanent impairment was previously determined to be greater than zero, the worker's condition has deteriorated significantly since the last NEL determination, and 12 months have passed since the worker's last NEL decision.

A “significant deterioration” refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.

In reviewing the initial NEL assessment from 1999, I note that the worker stated that he had increased left leg weakness, numbness and muscle spasms with his leg occasionally giving out. The worker drew a diagram showing pain from his low back radiating down his left leg all the way to his feet. He also indicated left thigh tightness with occasional decreased sensation. He stated that the pain was constant of variable duration and described feeling like his lumbar region was in “vice.” On clinical examination, his lumbar lordosis was measured at 20 degrees and flexion was 15-29 degrees. Extension, right lateral flexion and left lateral flexion were all rated as “0.”

Legislation and WSIB policy provide that the degree of a worker’s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the “AMA Guides”).

Using the NEL assessment of the lumbar spine with neurological deficit, the NEL Clinical Specialist rated the worker according to the provisions of the AMA Guides at table 53, Impairments Due to Specific Disorders of the Spine. The lumbar spine was rated at 12% under item IV (B) described as single level operation with residual signs or symptoms. Impairment Due to Abnormal Motion of the Lumbosacral Region at Table 60, were based on the range of motion measurements noted above in the NEL assessment and equalled 24%. Combining 24% and 12 % using the combined values chart resulted in a 33% NEL award.

I have carefully reviewed the medical information on file and note that there is very little information with respect to measurable objective findings. Although there are numerous reports from Dr. S on file, she does not provide any objective range of motion findings to support a significant deterioration below NEL level.

The CBI physiotherapy report of June 2, 2010 noted the worker’s lumbar flexion at 20 degrees and flexion at 13 degrees. This is an improvement from the NEL assessment.

Dr. S’s letter of October 29, 2010 addressed to the worker representative provided range of motion measurements, which she took on September 16, 2010, as follows:

• Flexion 10 degrees

• Extension 5 degrees

• Lateral flexion left and right 5-10 degrees

The FAE report dated October 4, 2010 also by CBI physiotherapy noted the workers low back range of motion as follows:

• Flexion 10 degrees

• Extension 10 degrees

• Lateral flexion 15 degrees on right and 15 on the left

Although there is a slight decrease in flexion compared to the NEL assessment, there is an improvement in the worker’s extension and left/right lateral flexion.

The MRI report of August 8, 2010 confirmed that there was no new pathology compared to the worker’s previous MRI from 2005. There was no evidence of any spinal stenosis or any new disc protrusion.

Noting that the FAE assessment is the most recent report with range of motion findings and provides a more comprehensive review of all areas compared to Dr. S’s reporting, I consider this report to be the most accurate. If I were to use table 60 and input the range of motion values found in the FAE assessment, the worker’s impairment under table 60 would equal 22%. The table 60 valuation at the initial NEL rating was 24%.

Based on the evidence before me, I am not satisfied that the worker is entitled to a NEL re-determination as there is no evidence that the worker has suffered a significant deterioration.

4. Section 43(9) supplementary benefits beyond May 1, 2010

In reviewing the evidence, I am satisfied that the worker is not entitled to section 43(9) supplementary benefits beyond May 1, 2010

Section 43(9) of the Act provides the authority to pay supplementary benefits to a worker who is co-operating in either a WSIB approved medical rehabilitation program or an early and safe return to work program. The supplement is added to the FEL benefits and the combined value of the FEL and supplement equals 90% of the worker’s pre-injury net average earnings.

In the April 15, 2008 decision letter, the worker was advised that he would be entitled to a sustainable FEL award on the basis that his employer was able to provide suitable modified work for him. In the same letter however, the worker was granted entitlement to supplementary benefits as he was participating in a Board approved medical rehabilitation program. The worker had actually been off work since August 2006 and was being paid total temporary benefits until May 1, 2008 when the supplement was ordered.

In reviewing the file, I note that there was never any evidence that the worker was below his NEL level at any point between May 1, 2008 and May 1, 2010. Although the worker subjectively complained of ongoing pain and underwent epidural injections in his low back every few months, he was not involved in any active medical rehabilitation program. The file record indicates that he was on a waiting list for an experimental SCS procedure that was to take place in (city).

The worker testified that he was off work between 2006 and 2009 while on a waiting list to have the SCS implanted in his back which was to be done in (city). He was told that this was his last option to assist with his pain and reduction in medications. The worker advised that he underwent the procedure but it did not improve his pain at all and therefore he had it removed. The worker stated that he was dejected following the failure of this procedure and felt suicidal due to the severe pain he was in. Following the operation, he has been having significant problems with pain and lost mobility in his shoulders and was having back spasms. Since the SCS procedure he started using a cane.

The worker was initially scheduled for surgery on May 12, 2008 however he cancelled this appointment because he didn’t want to undergo any further surgery. This is documented in memorandum 130. With respect to returning to modified work, the worker stated that he was not keen on the idea due to his pain and stated that he has enough sick time so that he can retire next year in June. As noted in memorandum 144 the worker cancelled the surgery again as his brother-in-law was not available to travel with him.

Subsequent medical reports indicate that aside injections every few months and few psychological sessions with Dr. L in Mid-2007, the worker was simply waiting for the procedure and was not involved in any active therapy.

I do not believe that this can be characterized as a “medical rehabilitation program” as described in Policy 18-04-11. This policy document describes a medical rehabilitation program as a “course of medical or paramedical treatment or care for a work injury recurrence or significant deterioration of a work injury. It is required to bring the worker to a state of maximum medical recovery so that the worker may achieve, or return to, suitable employment”. In my view, the infrequent medical treatment cannot be reasonably interpreted as a medical rehabilitation program. Moreover, as the evidence indicates, the worker was never below his previous NEL level.

The worker eventually had the minor procedure done on September 28, 2009 and the reports indicated that he tolerated the procedure well but since he didn’t find the stimulator helpful, it was removed two days later. Following the procedure the worker asked to go back to see Dr. S at the pain clinic for injections.

In April 2010 the employer verified that they still had modified work available. The file record confirms that a letter was sent to the worker dated April 7, 2010 stating that the employer was able to accommodate his work immediately. The letter states that the work involves desk duties and the worker was asked to contact the employer to arrange a return to work. The memorandums on file clearly confirm that the worker made it very clear that he was not interested in returning to work and was planning on retiring soon. Memorandum 153 confirms that the worker received this letter. The CM goes on to document the following:

“He (the worker) said he has no intentions of returning to work and will be taking his retirement. I told him his benefits would be ending 01MAY2010. He understood.”

This statement is corroborated by the fact the worker went into see his employer to return his (redacted) and equipment as noted on the (form) signed and dated by the worker on

May 14, 2010. The form indicates that this formally starts the retirement process. That afternoon the CM called the worker and advised him of the overpayment.

At the hearing the worker was questioned about the modified job offer sent to him dated

April 7, 2010. The worker acknowledged receiving this letter but stated that he could not recall if he responded to it. When asked if he could do desk work he stated that he is not good with computers and has difficulty remaining focused. He also stated that he had enough depression in his life that he would not have been able to help other people. The worker said he could have tried but medical people he was dealing with at that time told him that he couldn’t work in any capacity. He did however acknowledge that if he had gone back to work he doesn’t doubt that his employer would have been able to accommodate him and wouldn’t have had any issues with him sitting and standing. The worker also acknowledged that in all the years he was provided with modified work, his employer had never reprimanded him due to slow productivity or any other reason. He also agreed that he is part of a union.

Based on the evidence, there is simply no objective evidence to support the worker being below his NEL level at any point in the two year period, with the exception of a few weeks after the SCS surgery. If the worker was able to work from 1999 with his 33 per cent NEL award then I do not understand why he was unable to work from May 2010 onwards. The evidence strongly supports through the various memorandums on file that the worker was intending on retiring. To pay a medical supplement under this section the worker needs to be actively involved in a medical rehabilitation program and he was not involved in this. As such, the worker is not entitled to a supplement under section 43(9).

5. Ongoing entitlement, FEL award, overturning of the NEL award and surveillance evidence

Having considered the surveillance evidence along with the file record and the worker’s testimony, I am satisfied that the worker has an ongoing permanent impairment for his low back and his NEL award should be re-instated. I am however not persuaded that he is entitled to a FEL award.

As already indicated above, the worker was offered permanent modified work by the employer however he refused this offer on the basis that he was totally disabled and also because he was planning on retiring. Subsequently, the CM authorized a period of surveillance on the worker to determine the extent of his disability.

Surveillance was conducted from March 28 to March 31, 2011 as well as April 20, 21 and 22, 2011.

From the outset I note that that the worker was not residing at the address we had on file at that time he was under surveillance. He was actually residing in (city) not in (city). The worker testified at the hearing that the (city) address is his sister’s house where he was residing and that the (city) address is where his girlfriend resides. The worker explained that his primary address was the (city) address but sometimes he would live and stay at his girlfriend’s house and that he thinks he did advise the WSIB about this arrangement. However all his belongings and clothes remained at the (city) address and he would return every few days. There is no evidence on file that the worker ever advised the operating area of this arrangement.

The worker advised that he was living with his youngest sister for the longest time (address) and also sporadically stayed with his girlfriend (address) and then moved in with his girlfriend after the last hearing in April 2011 on a temporary basis. He also used this as a temporary address for his mail. Since May 15, 2013 he lives with his youngest daughter in (city).

Given that on all the days the worker was under surveillance he was picked up from the (city) address leads me to infer that the worker was not being honest with me at the hearing. It is more likely than not that he was living at the (city) address and was using the (city) address as his mailing address only. This is a material change that the worker failed to report.

With respect to the surveillance evidence in general, the worker testified that he had watched the video and was aware that he was being taped. He said the people who were taping him were very conspicuous and used the same vehicle on consecutive days with Ontario licence plates. He was able to vividly recall the make and model of the vehicle as well as other features. He said he also recorded the licence plate. The worker stated that he did not change his behaviour due to the surveillance and carried on performing his regular day to day activities. I found it interesting how well the worker was able to recall this information noting that he has been claiming significant issues with memory, concentration and focus.

On March 23, 2011 the worker is seen getting out of a green van and walking briskly with no evidence of a limp or assistive devise into his house. The worker testified that the footage on March 23, 2011 shows him arriving in a car driven by an older gentleman. The worker explained that this person is like a father to him and that occasionally he will pick him up and they will go for coffee. The worker stated that there is nothing in the footage for that date that shows him doing anything that would be outside his precautions.

On March 24, 2011 I note the worker reverse parks his car at a restaurant parking lot and exits the vehicle in a quick fluid movement with no evidence of a struggle and walks into the restaurant without any impaired gait or cane. The worker is in the restaurant for over an hour and there is no footage inside the restaurant. The worker testified that the restaurant that he is seen attending this day is the closest restaurant to his girlfriend’s house and is less than a 1000 feet away. The worker stated that he personally knows the owner of the restaurant and she allows him to keep a specially made chair for him at this location. The worker provided a picture of a collapsible stool which is filed as exhibit 1. He stated that he would kneel on this stool if he was talking to patrons of the restaurant and it was placed under the table and then the owner would take it away. He stated that he was told by a psychologist he met in (city) in 2000 that he should get out and meet other people with disabilities. The worker stated that the majority of the people at that restaurant are fellow disabled people receiving WSIB benefits.

The worker left the restaurant with another male and is again seen walking briskly with no evidence of any limp or cane. The worker is then seen at a parts store where he is seen easily bend at the waist to look for parts on a rack. The worker testified that the auto parts store is about two kilometres from the restaurant. He said he purchased two windshield wipers. The worker stated that bending is usually difficult for him to do and although he is seen bending on the tape at the store he said he had both hands on his knees and he said he didn’t bend at the waist. Based on my observation of the footage, the worker only has one hand on his knee while the other hand is on the rack looking for a product. I even observe him do a quick squat with no evidence of any difficulty or grimace. I again see him enter his car in a quick fluid motion.

The worker said that he then went to a local residence on (street name) where his mechanic is located to drop off the parts for his daughter’s car. He stated that the video shows someone bending at the waist into a car. The worker stated that this was not him and claimed that there was another vehicle (Pontiac) also parked at this location that belonged to the owner’s assistant and it could have been him. The worker stated that he was wearing a brown leather jacket that day which does not correspond with what is seen. However based on my review of that clip at exactly 11:41am I see the worker bending into the back of his car. Granted I cannot see his face but on the balance of probability it was most likely the worker since he was seen earlier that day wearing a grey hoody and it was his car that the person was bending into. The worker didn’t deny he was at that address at that time.

The surveillance on March 25, 2011 again shows the worker driving; however, this time he is seen driving a beige vehicle and again he is seen exiting and entering his vehicle in a swift and fluid movement. I note that the worker is back at the same restaurant from the day prior. The worker confirmed at the hearing that he did go back to that restaurant but disputed that he was seated inside the restaurant for over an hour as indicated in the surveillance report. The worker stated that he did get up to take pills and also was kneeling on his stool. He said that the surveillance report is wrong and the video is edited. I acknowledge that the time on the video is incorrect (this is also noted in the surveillance report) and I agree that the worker does get up after about 30 minutes of continuous sitting but it is only for about a minute and he comes right back. According to the time on the surveillance video he gets up 12:41:08 and is back in his chair again at 12:41:43 (less than a minute). I did not see the worker kneeling on a stool.

If the worker got up to take his pills as he testified then the assumption can be made his pain must have kicked in. But what is interesting to me is when he gets up, he doesn’t hold his back or get up slowly or show any signs of weakness in his left leg as he has claimed many times. He gets up in a fluid motion. In carefully reviewing the 45 minute portion of surveillance in the restaurant and note that the worker is quite animated, moving his hands and laughing and is seen on a few occasions leaning forward with no evidence of any distress.

The WR argued that the at the restaurant the worker was supporting himself a great deal of the time by placing his elbows on the table and kneeling at times. Sometimes he utilised the plastic stool with padding on top. I saw none of this on the video. I did see the worker place his elbows on the table but to say he was leaning on them for “support” is quite a stretch.

The worker is then seen attending a business that sells bearings. At 12:52 on the video the worker is seen twisting his torso to place items on the passenger seat while seated in the driver’s seat. I also did not observe any special seat or obus form on the driver’s seat.

The worker stated that he needed to deliver parts to his mechanic for his daughter’s car and went back to AC Delco to pick them up and bought a box with Styrofoam chips in it. He said this box was to place delicate items in and had nothing in it but Styrofoam. On the footage of

March 25, 2011 at 1:08pm I see the worker bending completely at the waist to place a box into the back seat of his car. The worker walked with a casual pace and again there is no evidence of any pain behaviours or any assistive device. A minute later the worker comes out carrying a slightly bigger box and again bends into his car to place the box inside. There is no guarding or laboured movement. The worker’s movements are fluid and unrestrained. I did not find the worker believable when he said the box had Styrofoam chips. One does not bend and take great care to place a box of “Styrofoam chips” in to the back of their car. Why not just throw it on the back seat? Why bend unnecessarily when you don’t have to?

With regards to the April 21, 2011 footage the worker is seen with a cane in his left hand and with a noticeable limp. This is significantly different than the three days he was observed in March 2011. The worker testified that he started using the cane after the SCS surgery in 2009. Aside from a cane, the worker testified that he utilises a back brace and leg brace on a daily basis. He explained that the leg brace helps him walk and stops his leg from falling asleep.

The worker stated that April 21, 2011 was the day of his previous appeals hearing. He stated that he started the day by meeting a friend for moral support at the same restaurant he was filmed at previously. The worker was questioned why he was seen with a cane and a noticeable limp that day when this was not observed before. The worker stated that he has good days and bad days and that he had not slept very well the night before the hearing and therefore was in a lot of pain. He stated that he also didn’t sleep well prior to the current hearing either but the difference then was that he didn’t take any medications before that hearing and today he took his medications.

With regards to medications, the worker testified that he takes six 650mgs of Tylenol, Cymbalta and Amitriptyline. The worker stated that he took these medications prior to attending this hearing. He is not currently taking any narcotic medications because he doesn’t have a family doctor and walk-in clinic doctors refuse to prescribe narcotics. The reason for not taking medications prior to the April 21, 2011 hearing is because he wanted the ARO to see him without any medications. He also stated that he wasn’t wearing his back brace or leg brace that day again because he wanted the ARO to see him without any aids. This is why the worker was utilising a cane at the prior hearing but did not bring one to this hearing.

I found the worker’s explanation surrounding the April 21, 2011 hearing to be odd and confusing. I fail to see how not taking his medications would have any bearing on the hearing. And if he really wanted the ARO to see him with “no aids” then why did he utilise a cane? Isn’t a cane also considered an “aid?” He had previously not needed the cane and also attended the current hearing without a cane. In my opinion, the only purpose for the cane was to show the ARO how disabled he was and not the other way around. Besides, I saw the worker on the surveillance video on April 21, 2011 while he ate his breakfast and he didn’t appear like someone who was in a lot of pain due to not taking his medications or look like someone who hadn’t slept all night. The worker looks jovial and again quite animated. I also note that the worker is sitting in a regular chair and there is no special sit/stand padded stool that he claims he has placed at this particular restaurant. He is seen sitting for 30 minutes continuously before standing up. It is again important to note that at this hearing the worker testified that without pain medications his pain is unbearable and reaches 9 out of 10 in severity. The worker did not appear as someone whose pain was at 9 out of 10 in that restaurant.

The worker stated that just because he is not seen wincing or grimacing doesn’t mean that he has no pain and claimed that many people with chronic pain and cancer do not wince or display overt signs. With regards to not utilising any cane or other assistive device, the worker said that there were days that he did use them but the surveillance was not shown for the days and he questioned the accuracy of the footage obtained claiming that there are errors with the dates and there has been a lot of editing and splicing involved. In spite of this, the worker never denied that it was him on the video.

On the occasions where he is seen walking without a limp, the worker explained that he just holds his breath and this is a strategy he has learned to help him tolerate any pain. The worker was asked to reconcile what we see on footage to the functional abilities report addendum dated January 28, 2011 where it stated that the worker cannot walk without a cane and walks with a noticeable limp. The worker responded that no two days are the same and there are numerous days he spends on his knees.

The worker was also questioned about his ability to bend forward. According to the letter provided by Dr. S dated October 29, 2010, the worker is only able to forward flex 10 degrees, which is almost nothing and contradicts what is seen on the footage. The worker explained that Dr. S told him to forward flex only until his pain score went up and when he did he stopped. Yet the FAE also provided forward flexion measurement of 10 degrees and this was taken with a month of Dr. S’s reporting.

He stated that there were days that he knows he was being followed and yet they did not produce videos for those days. (redacted) so he knew he was being followed.

In regards to the surveillance evidence, the WR requests that it either not be admitted as evidence due to the lack of it probative value or if it is admitted, no weight should be placed on the video since it has significant technical errors/deficiencies and only provides a snapshot of the worker’s condition on certain days.

The WR argued that the surveillance evidence does not contradict the October 2010 FAE report or its addendum. She notes that although the worker is seen on the video as bending, he did so by supporting his hands on his knees and at the FAE he was asked to bend unsupported. With respect to sitting, the surveillance shows the worker sitting at a restaurant for longer than what was outlined on the FAE report. She notes that the FAE stated that the worker can sit for 10 minutes before needing to change positions and this is supported by the worker’s testimony and observations at the hearing.

With respect to the worker’s level of impairment and the inactivation of the NEL award, the WR argues that the medical evidence strongly supports that the worker is not capable of working in any capacity and that this is supported by numerous medical consultants who have reviewed the file since January 2007 (memorandum 101, 126 and 132). She notes that the medical consultants have confirmed that the worker suffers from failed back surgery and that the last resort left for him was to try the spinal column stimulator (SCS), which also was not a success. She references Dr. K’ March 29, 2011 report which states that the worker is not capable of even a desk position.

She notes that Dr. K also highlights that following the SCS surgery the worker developed new symptoms related to left foot pain and sensitivity around the incision cite. His depression and anxiety also worsened.

The representative notes that the October 2010 functional abilities evaluation (FAE) confirmed that the worker did not demonstrate the tolerances required for even sedentary work and his inability to tolerate unsupported sitting would preclude him from engaging in seated work. The FAE assessor noted that the worker presented in a consistent manner which was supported by bio-mechanical changes in perspiration, increased heart rate and increased respiratory rate. She notes that the FAE of September 2014, commissioned at their request, also corroborated that the worker’s strength capacity was functioning below sedentary work level.

Policy 11-01-08 states that WSIB staff must exercise caution when determining the weight to give information revealed in recordings, recognizing that audio/visual recordings make a dramatic impact on the viewer, and in general, recordings may be selective, i.e. information relevant to the issue in dispute, such as when a worker rests or experiences pain may not be recorded.

Video evidence is suggestive not determinative. On its own, video evidence cannot be used to determine whether or not the worker has an actual impairment.

Having regard for policy 11-01-08 and considering the medical evidence on file I find that the CM erred in rescinding the NEL award and determining that the worker has fully recovered from his compensable injury. To arrive at this conclusion based simply on the video evidence is erroneous. The fact remains that the worker has undergone 3 operative procedures on his back and has received in excess of 60 epidural injections. No one would go through all this if indeed they had no symptoms. Given the medical evidence, I am satisfied that the worker has a permanent impairment in his low back and the NEL award should be reinstated.

The surveillance evidence however does carry some probative value in determining the degree of impairment, which is the real issue in my opinion. It sheds some light with respect to the worker’s ability to sustain employment in a sedentary job. The worker participated in FAE in October 2010 and presented as significantly disabled. It was noted that he walked with a significant gait and ambulated with a cane.

In response to the surveillance evidence, the WR cautions in her submissions that FAE testing requires the performance of many different tasks, one after another over a measured period of time, which may reduce tolerances due to pain and fatigue. She notes that the worker would not be doing these tasks in his day to day life and would have to option of spacing them out throughout the day. She also noted that the worker would perform most errands in the morning as he is well rested and able to better ambulate. I agree with this rationale. My question however is then why can’t the same logic apply to his work? The employer offered the worker office duties that were sedentary. No evidence has ever been presented that in the last 20 plus years the employer has ever had an issue with accommodating the worker or that the worker has ever asked the WSIB to intervene due to his employer not accommodating him. The worker is part of the (redacted) union and no evidence has been presented by the union of the worker that the employer has treated the worker unfairly due to his injury or has failed to reasonably accommodate him.

The worker testified that after returning to work at the airport he applied for a job at the courthouse (he could not recall the year) and this was an even easier job than the airport position and required him to only work day shifts. The worker stated that he volunteered to be (job title) as it gave him an extra office so he could stretch out and be more comfortable. There was sporadic use of a computer required but he stated that he would get others to assist him with this as he is “terrified” of computers.

At the very least, the surveillance evidence supports that the worker is able to walk without a cane, he is able to sit for at least 30 minutes before needing to get up, he is able to drive and on at least two occasions he demonstrated the ability to fully bend at the waist. In my opinion the worker would have been able to go back to sedentary work had he chosen not to retire.

The worker advised that he was planning on retiring around the time of the overpayment creation but then found out from his employer that he was short about $35,000 so he couldn’t do it. However after WSIB closed his supplement and created the overpayment, his employer also stopped paying his salary and he was told he could cash out his sick pay which was approximately $114,000 which he would get bi-weekly if he agreed to retire. The worker stated that he was forced to accept this proposition and retired. The worker said he would not have retired if he was still receiving WSIB benefits.

Later on during questioning from the employer the worker stated that on May 13, 2011 he came in to visit his employer to drop off (redacted) which is part of the retirement process and the next day he got the call from the CM about the overpayment. In other words the retirement process had already begun “before” the overpayment issue came to surface.

The worker testified that his pain is getting worse but during questioning when asked to rate his pain on a scale of 1-10, with 10 being the worst pain imaginable, the worker stated that with medication his pain is about 5 out of 10 and without medications he is around 8/9 out of 10. The worker advised that the medications last about 8 hours. He advised that he can drive about 10-15 minutes and if he is going to a function where it is pretty sedentary he can be there for about 1-2 hours. The worker stated that following the SCS surgery he has more pain in his mid-back.

The worker advised he resides with his daughter who leaves the house around 8:30am to go to work. After seeing his daughter off he will watch the news. In terms of activity he rotates between kneeling on the ottoman and sitting in his lazy boy couch. He will do crossword puzzles and has a large library of DVD’s and will watch movies. He takes about three baths a day and stays in there for some time. He stated that his daughter does the cleaning, groceries and shopping. The worker stated that he does not do any cooking, though he never has. He advised that he has a good social support system.

According to policy, a worker is entitled to a FEL award when work injuries prevent a worker from returning to his or her pre-injury job and the worker has suffered a wage loss as a result. In this case the worker was granted a sustainable FEL award on the basis that his employer was able to accommodate him permanently. I do not believe that the worker’s injury prevented him from returning to modified work. The evidence supports that despite his disability he would be capable of sedentary duties and were it not for his decision to retire, the employer would have been able to permanently accommodate him.

Accordingly, the worker is not entitled to a full FEL award, other than a sustainability award that allows the WSIB to pay any future supplementary benefits should the worker ever need it.

CONCLUSION

Based on the foregoing reasons, I conclude the following:

1. The overpayment remains fully recoverable.

2. Entitlement to psychotraumatic disability is denied

3. The worker is not entitled to a NEL re-determination as the medial evidence does not support a deterioration below the previous NEL level

4. The worker is not entitled to supplementary benefits after May 1, 2010.

5. The worker’s organic NEL award should be re-instated and ongoing entitlement is in order.

6. The worker is not entitled to a 100% FEL award.

The worker’s objection is allowed in part.

DATED: May 29, 2015

Mr. H. Mohamed

Appeals Resolution Officer

Appeals Services Division