APPEALS RESOLUTION OFFICER DECISION
decision number:
20220043
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer
REPRESENTED by:
employer representative
HEARING:
VIDEOCONFERENCE – April 12, 2022
HEARD by:
Stephanie Waters, appeals resolution officer
ADDITIONAL ATTENDEES:
Employer Resource Person
observer
DATED
May 2, 2022
ISSUE
The worker objects to the Case Manager’s (CM’s) September 24, 2018 decision, which determined the worker did not report a material change in circumstances. As a result, the CM determined the modified work with the employer was suitable and stopped loss of earnings (LOE) benefits as of June 15, 2018.
BACKGROUND
The worker’s date of hire was April 2011. On January 15, 2017 while working as an animal shelter attendant, a dog suddenly pulled this worker forward, causing her to hit her face on the kennel door and her head on the floor. The worker started losing time from work the next day, and she has not returned to work to date. The claim was allowed for head and face soft tissue injuries as well as full LOE benefits from January 16, 2017 onward.
A doctor assessed the worker on March 8, 2017 and diagnosed her with a mild traumatic brain injury (MTBI). The doctor recommended the worker remain off work for an additional four weeks and then return to modified duties with gradually increasing hours. The worker and employer met with a Return to Work Specialist (RTWS) and developed a return to work plan with modified duties and graduated hours. On April 28, 2017, the worker stated she was unable to return to work due to recent “blackout" events.
On September 1, 2017, the CM accepted the worker’s seizures were concussion-related and approved full LOE benefits from May 1, 2017 onward. The worker reported another accident at home causing a concussion on October 8, 2017. The CM referred the worker to the Toronto Rehabilitation Institute (TRI) and the worker attended neurology service assessments from November 2017 until July 2018. During this period, the worker reported ongoing symptoms affecting her functioning and ability to drive. TRI provided a final report on July 26, 2018, which summarized assessment findings as well as treatment and return to work recommendations.
On September 12, 2018, the employer presented surveillance video demonstrating the worker was driving in May and June 2018. In a letter dated September 24, 2018, the CM indicated the worker reported being unable to drive but the surveillance showed her driving on highways and city streets. The CM determined this represented a material change in circumstance that the worker did not report. The CM pulled back and ended LOE benefits as of June 15, 2018, which generated a recoverable overpayment. The CM also determined the modified duties with the employer were suitable.
The worker’s representative objected to this decision and submitted an Appeal Readiness Form.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-01 Work Reintegration Principles, Concepts, and Definitions
22-01-02 Material Change in Circumstances – Worker
January 2, 2018
December 3, 2012
January 2, 2013
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find:
The worker’s ability to drive constituted a material change in circumstance as of May 30, 2018, which the worker did not report to the WSIB within 10 calendar days;
The modified duties available with the employer were suitable and the worker is not entitled to any LOE benefits effective June 15, 2018.
The worker’s appeal is denied.
Preliminary Issue
At the beginning of the hearing, the worker’s representative raised a preliminary issue. The CM referenced a Ministry of Transportation (MTO) abstract regarding the worker’s driver’s license in a memo on September 19, 2018. The worker’s representative noted this was relevant to the issue in dispute but explained they did not have a copy of this document in their access file. The employer’s representative confirmed they also did not have a copy of this document.
I confirmed the file section this document was in, and provided viewing of this document to all participants through screen sharing. Everyone agreed this was sufficient and both representatives confirmed they were ready to proceed with the hearing.
Worker’s Oral Testimony
The worker stated she had head and face injuries from the accident, as well as side effects from her concussion. These included seizures, blackouts, headaches, vision and memory problems, dizziness, and balance issues. Presently, the worker stated she has a permanent indentation on her forehead and she still takes medication for migraines, seizures, and back and neck pain. Her vision problems (black spots on vision) and balance issues have mostly resolved. The worker’s dizzy spells and panic attacks have also improved by occurring less frequently and being less extreme.
The worker recalled the employer offering taxi transportation to and from work in April 2017, but did not return to work at that time. The worker stated she felt unable to return to the modified work in May or June 2018 due to her ongoing head injury symptoms. These included significant dizziness, extreme headaches, and a poor mental state of high anxiety and panic attacks. However, the worker also stated doctors authorized her back to work performing modified duties cleaning the animal shelter. When asked about the TRI’s recommendation to avoid working with animals, the worker stated she would want to go back to work with animals because she is comfortable with this type of work. She confirmed she would have been comfortable working with animals in 2018.
The worker stated she was open to returning to work and participated in a meeting with an RTWS in fall 2018. She never returned to work though and is not currently working because she was terminated in October 2018. The worker stated this was not due to her work injury and a settlement was reached with her employer.
After the January 2017 accident, the worker stopped driving immediately and did not start driving again until May 2018. During this time, the worker primarily stayed home. When she needed to travel for medical appointments, the worker arranged transportation from a family member or friend. Doctors told the worker they would contact the MTO about suspending her driver’s license due to her symptoms, but the worker never received confirmation that her license was suspended. The worker stated the WSIB did not ask her if she had a valid driver’s license, and did not call or warn her about the surveillance when it was received.
The worker could not recall the exact date or the doctor’s name, but she stated the main TRI doctor told her to gradually start driving locally a few weeks before May 30, 2018. The worker practised driving in her community for short distances to the bank (five minutes) and the grocery store (nearly across the street). On May 30, 2018 and June 1, 2018, the worker drove on highways for the first time since her accident between her home and TRI appointments in downtown Toronto. The drive took over one hour each way and the worker confirmed she was able to do these drives without any issues.
The worker explained she drove herself to these appointments because her pre-arranged transportation with family and friends got cancelled last minute. The worker stated she did not want to reschedule the appointments because they were with specialists. She was also worried the WSIB would find her uncooperative and affect her benefits if she missed the appointments. She did not know that driving was something she should not do, or was considered a change she had to report.
The worker testified she did not know what was considered a material change that had to be reported, and the WSIB never showed her the relevant policy or explained it to her. The worker confirmed receiving and reading the January 17, 2017 letter from the WSIB, which explains that changes in circumstances must be reported, but she did not see driving listed as a change to be reported on this letter.
The worker stated she did not deliberately lie when the CM asked about her ability to drive. She panicked and said she was not driving because she was worried about her job and WSIB benefits. The worker confirmed she did know she made a false statement about driving but she did not call the WSIB back at a later time to correct her statement because it did not occur to her to do so, and then the CM had the surveillance and already knew.
Worker’s Position
It is the worker representative’s position that the worker is entitled to ongoing LOE benefits. They made the following arguments to support their position:
The worker began driving locally because the TRI doctor said she could and her license was never suspended.
On May 30, 2018 and June 1, 2018, the worker drove directly to and from her WSIB-related medical appointments because she could not find alternate transportation and she did not want the WSIB to find her uncooperative and affect her benefits.
Benefit of the doubt should be given to the worker because she was going through a lot and had high anxiety at the time.
The worker did not intentionally make a false statement about her ability to drive; she panicked when asked about her ability to drive and said she could not.
The worker was never told or made aware that the ability to drive was considered a material change that she needed to report.
The worker was unaware of any penalty for not reporting this change.
The worker had no chance to clarify her driving ability prior to her benefits being affected because the WSIB did not provide a warning letter once aware of the surveillance and material change.
It was the WSIB’s responsibility to investigate and clarify the worker’s ability to drive before receiving the surveillance but they did not do so.
It is not reasonable to expect the worker to know that driving was “so terrible" that her benefits would be cut off.
The worker’s representative added that the worker’s ongoing LOE entitlement was complicated by her non-compensable termination, which stopped the worker’s ability to participate in return to work through no fault of her own.
Employer’s Position
It is the employer representative’s position that entitlement to ongoing LOE benefits is not in order because it is clear there was a material change in circumstance. They stated on multiple occasions the CM was made to believe the worker was unable to drive, and made entitlement decisions based on this understanding. They noted driving was repeatedly listed as a restriction affecting the worker’s ability to return to work. The representative noted the surveillance and testimony confirms the worker drove a long distance on at least two occasions with no difficulty in May and June 2018.
The employer’s representative stated the worker admitted to making a false statement that she was not driving, and did not clarify or correct her statement afterwards. They argued it is the worker’s responsibility to inform the WSIB of any changes and participate in return to work. The representative also argued medical evidence in May 2018 and afterward does not support anything preventing the worker from driving as of this time.
Additionally, the employer’s representative stated the issue of the worker’s termination is not before me. They argued that if I grant ongoing LOE benefits, benefits beyond the worker’s termination should be returned to the operating area for a decision on re-employment.
Assessment of Entitlement
It is the worker representative’s position that the worker is entitled to ongoing LOE benefits beyond June 15, 2018. It is the employer representative’s position that entitlement to ongoing LOE benefits is not in order. Information on file supports the employer representative’s position. There are two issues in this appeal: the determination that there was a material change in circumstance the worker did not report, and the resulting impact on the worker’s LOE benefits. I will review each of these issues, and the relevant arguments from the representatives, in order.
- I find the worker’s ability to drive constituted a material change in circumstance, which the worker did not report to the WSIB.
When reviewing this issue, I considered the policy that discusses material changes in circumstances and reporting expectations.
Policy 22-01-02 (Material Change in Circumstances – Worker) states the following:
It is the responsibility of each person to contact the WSIB personally as soon as a material change occurs… The person must report the change no later than 10 calendar days (including the date of the change) after the change occurs. If a person is not sure whether a change is a material change that may affect entitlement, it should be reported so that the WSIB can make a determination.
Changes that persons must report to the WSIB include… health care status, such as improvement or a deterioration of the work-related condition.
The worker’s representative made numerous arguments explaining why the worker drove locally and long distances on highways as of May 30, 2018: the worker’s license was never suspended, the doctor told her to drive, alternate transportation cancelled, and she wanted to cooperate with WSIB medical appointments.
I will first clarify that the issue in this case is not the fact that the worker drove. The issue is that the worker drove while repeatedly telling the WSIB and clinicians that she could not drive due to her injury and symptoms. Based on the worker’s testimony, the worker began driving locally in early to mid-May 2018, and drove over one hour each way on highways on May 30, 2018 and June 1, 2018. Although she began driving at this time, I noted the following was documented on the file:
On May 1, 2018, the worker told the CM she had stopped driving as told by her doctor.
On May 14, 2018 during a neuropsychology interview, the worker stated she was not driving.
On May 17, 2018 during a neurotology assessment, the worker reported not driving at the time.
When attending occupational therapy cognitive and functional ability assessments on May 31, 2018, June 1, 2018, and July 19, 2018, the worker reported not currently driving.
On June 7, 2018 during a psychiatric assessment, the worker reported she had not driven since an episode when she drove onto a sidewalk in summer 2017.
On June 25, 2018, the worker told the CM she was unable to drive and could not get to work.
On June 28, 2018 during a physiotherapy assessment, the worker stated she did not currently drive.
On September 24, 2018, the CM discussed the surveillance showing the worker driving on highways and city streets. The worker denied driving such distances and stated she only recently began driving locally to see her ill mother.
Evidence shows the worker was not forthcoming about her ability to drive on numerous occasions to multiple individuals for at least four months after she began driving. This significantly reduces the weight I can place on the worker’s oral testimony. The worker stated she panicked and said “no” when the CM asked if she was driving. This does not explain or justify the worker informing multiple individuals, including clinicians attempting to assess her level of functioning, that she could not drive while she was doing so for four months.
The worker also testified that she began driving locally in May 2018 on the recommendation of her TRI doctor. This conflicts with the TRI’s final summary report on July 26, 2018, which stated the worker could not drive at present and would require transportation to work. The worker’s testimony also conflicts with the CM’s documentation of the worker’s contemporaneous statement in September 2018 that she began driving locally “recently” to see her ill mother.
The worker’s representative argued that benefit of the doubt should be given to the worker because she was going through a lot, had high anxiety, and did not intentionally make a false statement about her ability to drive. I am not swayed by this argument considering the worker’s testimony that she knew she made a false statement about her driving. The worker testified she did not correct her statement because it did not occur to her to do so, and then the CM already knew once they received the surveillance. I find it unreasonable that the worker was asked about her driving ability multiple times by multiple people for four months and she repeatedly reported not driving without ever clarifying or correcting this statement.
The worker’s representative argued the worker had no chance to clarify her driving ability prior to her benefits being affected because the WSIB did not provide a warning letter once they were aware of the surveillance and material change. The worker’s representative stated the worker was never told her ability to drive was considered a material change that she needed to report, and the worker was unaware of any penalty for not reporting this change.
I understand the CM informed the worker of the surveillance on the same day they issued the decision letter affecting the worker’s benefits. However, I find the worker had many opportunities to clarify her driving ability for at least four months since she began driving locally and on highways in May 2018. The worker could have called the CM at any time to inform them of her change in driving ability but she did not do so. The worker also had the opportunity to clarify her driving ability during at least seven medical assessments at TRI but she did not do so.
I am unable to accept the worker representative’s argument that the worker did not receive a warning letter or any explanation about material changes. During the hearing, the worker testified that she received and read the letter from the WSIB dated January 17, 2017. This letter included the following instruction regarding material changes in circumstances:
You must report the following changes in your circumstances to the WSIB within 10 days of the change to ensure the benefits you are receiving are not reduced or stopped, and that you are not subject to a penalty:
An improvement or worsening in your condition,
A change in your ability to co-operate in treatment, early and safe return-to-work activities, or work reintegration program.
Please contact us if you are unsure if you need to report a change. We can review the information and decide if adjustments to your benefits are necessary.
I find this letter provided clear instruction to the worker that any improvement in her condition or change in her ability to participate in return to work activities should be reported to the WSIB within 10 days. I find this letter provided clear warning that not reporting changes could lead to an impact on benefits. I also find this letter clearly indicates that the worker should contact the WSIB any time she was unsure if she needed to report a change.
The worker’s representative argued this letter did not specifically identify driving as a change to be reported. However, I find the worker should have reasonably known that her ability to drive would fall within the categories identified on this letter. The worker testified that she only started driving again when she experienced an improvement in her condition and symptoms. Additionally, the worker’s ability to drive has been repeatedly discussed in relation to the worker’s ability to cooperate and participate in return to work activities since January 2017.
In April 2017, the RTWS documented that the employer offered taxi transportation to and from work in addition to modified duties to accommodate the worker’s inability to drive due to her condition. On August 8, 2017, the CM document the worker advised being unable to drive due to fainting/blackout episodes. The CM then informed the worker that if medical evidence confirmed what she reported, the CM would accept that the worker was unable to participate in a return to work plan due to the onset of seizures and the risk of blacking out. On June 25, 2018, the worker indicated she could not get to work because her symptoms had not changed, she was unable to drive, and public transit was not practical.
I find there were multiple conversations between the worker and WSIB staff where the worker’s condition, limitations, and ability to drive were discussed in direct relation to her ability to return to modified work. The worker testified during the hearing that she began driving in May 2018 because she had an improvement in her condition and symptoms. This conflicts with the worker’s statement provided to the CM in June 2018 that her symptoms had not changed and she remained unable to drive or get to work.
The June 25, 2018 conversation in particular makes clear to me that the worker had a reasonable understanding that her symptoms and ability to drive were directly related to her ability to cooperate in return to work activities and her ongoing entitlement to LOE benefits. This is because the worker clearly reported to the CM that she could not return to modified work because of her symptoms and inability to drive. The worker previously received ongoing LOE benefits based on the CM’s acceptance that the worker was unable to participate in a return to work plan due to her condition, symptoms, and limitations.
I find evidence establishes the worker had an understanding of her responsibility to report changes in her circumstances, that not reporting could affect her benefits, and she should contact the WSIB if she was unsure what changes should be reported. I find evidence supports the worker had a reasonable understanding of the relationship between her condition, symptoms, driving ability, and her ability to cooperate and participate in return to work activities.
The worker’s representative argued it was the WSIB’s responsibility to investigate and clarify the worker’s ability to drive before receiving the surveillance but they did not do so. I am unable to accept this argument. The January 17, 2017 letter and policy 22-01-02 clearly state it is the worker’s responsibility to personally report a material change when it occurs. Additionally, I find documentary evidence supports the WSIB made multiple attempts to clarify the worker’s ability to drive between January 2017 and September 2018. There are numerous memos on file where WSIB staff asked and documented the worker’s subjective reporting regarding her ability to drive. The WSIB also referred the worker for specialized medical assessments at TRI to get a clear understanding of the worker’s functional abilities including her driving ability.
Lastly, the worker’s representative argued it was not reasonable to expect the worker to know that driving was doing something “so terrible” that it would result in her benefits being cut off. I will note that policy 22-01-02 (Material Change in Circumstances – Worker) states:
If a person fails to inform the WSIB of a material change in circumstances, the WSIB presumes that this is intentional and thus wilful, unless the person can demonstrate having no knowledge of the change. Decision-makers determine whether the person reasonably should have been aware of the change by reviewing the facts of the case.
I have already addressed that the worker driving in general is not the current issue. I have also explained my determination that it was reasonable for the worker to know that a change in her ability to drive was a change that should be reported to the WSIB. Beyond that, I will note that this policy does not consider the reasonableness of the person knowing whether a specific change should be reported. It instead considers whether the person reasonably should have been aware of their change in circumstances.
I find evidence demonstrates the worker had full knowledge and awareness of her change in circumstances. She testified that she experienced an improvement in her condition and subsequently began driving. For this reason, there is no evidence to counter the policy’s presumption that the worker’s failure to inform the WSIB of this change was intentional and wilful. I find this presumption is further supported by the worker’s testimony that she knew she made a false statement regarding her ability to drive, and she did so to multiple individuals without correcting her statement for at least four months.
In summary, I find the worker had a material change in circumstance as of May 30, 2018 when the worker and surveillance confirm she was able to drive long distances on highways and city streets. I find the worker did not report this change to the WSIB within 10 calendar days despite reading and being aware of her reporting responsibilities regarding material changes as of January 2017.
- I find the modified duties available with the employer were suitable and the worker is not entitled to any LOE benefits effective June 15, 2018.
Before beginning my analysis on this issue, I would like to provide clarification in regards to the worker representative’s argument that it is not reasonable to expect the worker to know that driving was “so terrible" that her benefits would be cut off. As stated previously, the fact that the worker drove is not an issue in itself, but rather that she drove while reporting that she was unable to drive. Additionally, the worker’s LOE benefits did not end as of June 15, 2018 as a penalty for her driving or not reporting the material change. Instead, the worker’s LOE benefits were adjusted based on the material change in the worker’s condition and ability to drive.
Policy 22-01-02 (Material Change in Circumstances – Worker) states the following:
When there is a material change in circumstances, whether reported on time or not, the WSIB adjusts the person’s benefits retroactively to the date of the change. This could result in a benefit-related debt.
Briefly, this means that whether or not a worker reports a material change, their benefits (including LOE benefits) will be adjusted based on that material change. In this case, the CM determined the modified work available with the employer was suitable at full-time hours based on the material change in the worker’s condition, including her ability to drive. Since modified work was suitable at full-time hours, the CM determined there was no ongoing entitlement to LOE benefits effective June 15, 2018.
For the reasons that follow, I find the modified duties were suitable at full-time hours and the worker is not entitled to any LOE benefits as of June 15, 2018. When making my decision, I considered the policies that define suitable work and explain when LOE benefits can be paid.
Policy 19-02-01 (Work Reintegration Principles, Concepts, and Definitions) defines suitable work as post-injury work (including the worker’s pre-injury job) that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
Policy 18-03-02 (Payment and Reviewing LOE Benefits) states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of LOE benefits beginning when the loss of earnings begins. The policy adds:
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the work reintegration process.
I will provide a brief summary of the available modified work and the return to work recommendations provided by medical evidence on file and then complete my analysis.
Summary of Available Modified Work
On April 28, 2017, the RTWS documented that the worker’s regular duties involved cleaning the animal shelter, completing laundry, caring for animals, coordinating adoptions, and receiving inventory. The employer offered modified work including the following accommodations:
Self-paced rotation of cleaning bowls and light laundry within lifting abilities;
Assisting with paperwork for adoptions within abilities;
Initially receiving inventory only by verbally guiding if needed;
As abilities increase over weeks, assist with handling inventory items within physical abilities;
Taxi transportation between work and home;
Gradually increasing shift duration and numbers.
In a letter dated March 13, 2018, the employer confirmed these modified duties remained available to the worker. Similarly, during a conversation with the CM on May 18, 2018, the employer confirmed modified work of laundry, light cleaning, and taxi transportation was still available. The employer could also accommodate the worker with shifts starting at two hours per day if necessary. In another letter dated September 12, 2018, the employer again confirmed these accommodations remained available.
Summary of Medical Return to Work Recommendations
Assessment
Date
Report
Date
Specialist
Return to Work Restrictions / Recommendations
May 14, 2018
July 18, 2018
Psychologist
No restrictions for returning to work on a gradual schedule from a cognitive and psychological perspective.
May 17, 2018
May 25, 2018
Neurotologist
Avoid being at unrestrained heights until underlying dizziness/blackouts resolve.
Avoid driving until cause for blackouts evaluated.
May 31, 2018
May 31, 2018
Neurologist
No restrictions for driving or returning to work.
June 7, 2018
June 7, 2018
Psychiatrist
Restricted from return to work until she participates in 4-6 sessions of cognitive behavioural therapy (CBT).
June 28, 2018
June 28, 2018
Physical therapist
Worker would benefit from gradually increasing her physical activity.
May 31, 2018
June 1, 2018
July 19, 2018
July 22, 2018
Occupational therapist
From a head and neck injury perspective:
Demonstrated ability to meet sedentary physical strength demand.
Recommend graduated return to work with modified duties and hours, starting at two hours per day.
July 26, 2018
Neurologist
TRI Assessment Summary Report Restrictions:
Restricted from driving and regular work due to losses of consciousness.
Transportation to work required.
Restricted from returning to work until she completes 4-6 CBT sessions.
Restricted to sedentary duties.
Restricted from work with direct animal contact.
Avoid being at unrestrained heights until dizziness/ blackouts resolve.
Graduated return to work starting at two hours/day.
Regarding the worker’s blackouts, the final TRI summary report stated a seizure disorder is considered unlikely and epilepsy is no longer a diagnostic possibility. The clinicians recommended the family doctor refer the worker for further testing since a cause for the blackouts could not be identified.
The CM spoke with the TRI neurologist on September 17, 2018. The neurologist advised that the worker’s symptoms are not normal. The neurologist indicated the worker required four sessions of CBT prior to starting modified duties because she was very anxious and the treatment would help her prepare. Regarding the recommendation to avoid direct animal contact, the neurologist stated this was based on their understanding that the worker did not provide care for most of the animals in her home and the animals lived in an out-building on the property.
I find the worker is not entitled to any LOE benefits effective June 15, 2018 because modified duties were suitable at full-time hours.
I understand the medical reports recommended a delayed return to work until the worker completed four CBT sessions, and graduated modified duties afterward. However, I find I am unable to place any weight on these return to work restrictions and recommendations because they are based on inaccurate and inconsistent reporting by the worker to the assessing clinicians about her condition and abilities.
Every referenced medical report was based on assessments of the worker’s condition and abilities between mid-May and late July 2018. The worker reported that she was not driving due to significant and consistent symptoms at each of these assessments. By comparison, the worker testified during the hearing that her symptoms were improving and she began driving in early or mid-May 2018. Additionally, the medical reports indicate that many of the worker’s subjective symptoms were not confirmed by objective testing.
The psychologist documented that the assessment of the worker did not reveal neuropsychological deficits or deterioration in the worker’s neuropsychological functioning. The neurotologist indicated the worker’s exam was unremarkable apart from very mild left beating post-head shake nystagmus. The neurologist confirmed a normal neuro-ophthalmological exam except for persistent photosensitivity and excessive tearing. The psychiatrist indicated the worker did not demonstrate any balance issues or cognitive issues on informal observation or formal testing. The physical therapist stated the worker had intact coordination, mostly normal balance, and slightly reduced range of motion in her neck. Lastly, the occupational therapist noted the worker had functional active trunk, upper extremity, and lower extremity range of motion and strength, slightly reduced neck range of motion, and achieved average to superior results on cognitive assessments.
I am unable to accept the medical restriction for driving due to dizziness and blackouts. On September 19, 2018, the CM documented that the worker’s drive from home to her TRI appointments was 76km one way, and the drive from home to work was 54.6km one way. Surveillance and the worker’s testimony confirm she was able to drive a distance further than what would be required for work on at least two occasions with no issues. Even if driving remained an issue, the employer has consistently offered taxi transportation since April 2017.
The TRI summary report indicated the worker was restricted from driving and resuming regular duties due to losses of consciousness. The clinicians recommended the worker return to modified sedentary duties and graduated hours. However, the fact that the worker drove over one hour each way on highways with no issues brings into question the other return to work recommendations the clinicians made based on the worker’s subjective reporting. One example of the discrepancies on file is the worker reporting that she is terrified of falling secondary to balance issues and for this reason is uncomfortable leaving the house. She reported this to the psychiatrist on June 7, 2018, after completing over four hours of highway driving during two days on May 30, 2018 and June 1, 2018.
I find it reasonable that the worker would benefit from initially returning to sedentary modified duties rather than immediately returning to full regular duties. The worker was off work for 17 months by June 2018 and modified work would provide the opportunity for her to readjust to her work location, routine, and tasks. The modified work available with the employer was sedentary in nature since the worker would not be required to perform any strenuous physical activity and could self-pace her work. The restriction for work at unrestrained heights is irrelevant since there is no evidence showing this would be required for the worker’s modified or regular duties.
With that said, I cannot place weight on, or accept, the medical reports recommending graduated hours. There are a significant number of discrepancies regarding the worker’s functioning between what was reported to the clinicians, what was shown on surveillance, and what the worker confirmed during testimony. The surveillance and the worker’s testimony demonstrate the worker was functioning at a significantly higher ability level in May and June 2018 than what she reported to her clinicians.
For the same reason, I am unable to accept the psychiatrist’s conclusion that the worker was restricted from returning to any work until after she completed at least four CBT sessions. Additionally, this conflicts with the psychologist’s report indicating there were no restrictions for returning to work from a cognitive or psychological perspective. I find it reasonable for the worker to complete CBT sessions concurrently with her return to work in order to provide the recommended treatment to the worker despite the discrepancies regarding the worker’s functioning at the time.
I am unable to accept the medical restriction for the worker to avoid direct contact with animals. Clinicians provided this recommendation based on the understanding that the worker did not have direct contact with, or care for, animals while at home. By comparison, on May 1, 2018, the worker informed the CM that she had 48 animals in her home and every day she let the dogs out and fed the animals. In their July 22, 2018 report, the occupational therapist documented that the worker reported spending time caring for her birds at home. On September 24, 2018, the worker again confirmed contact with some of her animals at home. The worker also testified that she would have been comfortable returning to work with animals in 2018 despite the TRI’s recommendation to avoid contact with animals. Additionally, the modified work did not involve any direct contact with animals.
In summary, I find the worker would have been capable of performing the modified duties available with the employer at full-time hours as of June 15, 2018. As such, I find the worker is not entitled to ongoing LOE benefits because I am unable to establish she had a loss of earnings due to her work-related injury as of this date.
CONCLUSION
I find:
The worker’s ability to drive constituted a material change in circumstance as of May 30, 2018, which the worker did not report to the WSIB within 10 calendar days;
The modified duties available with the employer were suitable and the worker is not entitled to any LOE benefits effective June 15, 2018.
The worker’s appeal is denied.
DATED May 2, 2022
Stephanie Waters
Appeals Resolution Officer
Appeals Services Division