Worker v. Employer, 2022 CanLII 54920

20220062

REPRESENTED by:

TELECONFERENCE – May 3, 2022

HEARD by:

Dated:

Stephen Crisostomo, appeals resolution officer

MAY 17, 2022

ISSUE

The worker objects to the Case Manager’s decision dated January 31, 2019, which denied entitlement to Loss of Earnings (LOE) benefits from December 2, 2017.

BACKGROUND

On January 5, 2016, the worker, a sheet metal worker and inspector/Roofer (metal siding), slipped and fell off a residual roof from a height of approximately 25 feet, injuring his low back, bilateral hands/wrists and bilateral lower legs. Entitlement was reviewed and allowed for:

An open comminuted tibial pilon fracture of the left ankle;
An open fracture of tibia fibula left lower leg;
A scaphoid hairline fracture (mid pole) of the left wrist;
A closed comminuted intra-articular pilon fracture of the right ankle;
A transscaphoid perilunate fracture dislocation of the right wrist; and,
A low back superior endplate fractures of L1, L3 and L4

The worker was granted entitlement to LOE benefits from January 6, 2016 to January 9, 2019, based on their determined level of impairment.

Following an investigation conducted by Workplace Safety and Insurance Board (WSIB) Regulatory Services (Stakeholder Compliance), which included surveillance and open source social media queries, evidence showed the worker shovelling snow and posting boxing video at a local gym. The file was reviewed by the Case Manager, who determined the video evidence shows a significant contrast between the worker’s statements regarding his level of impairment provided to the WSIB and his health care practitioners. As a result, the Case Manager rescinded entitlement to LOE benefits retroactive to December 2, 2017. This decision was communicated on January 31, 2019.

As a result of the evidence obtained, the worker was charged accordingly with seven (7) counts of Knowingly Making a False or Misleading Statement or Representation and two (2) counts of Wilfully Failing to Report a Material Change, offences under sections 149(1) and 149(2) of the Workplace Safety and Insurance Act. On July 13, 2021, the worker pleaded guilty at Brampton Provincial

Offences Court to one count of Making a False Statement contrary to Section 149(1) and one

count of Fail to Report a Material Change contrary to Section 149(2) of the Workplace Safety and Insurance Act.

The worker objected to the January 31, 2019 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Worker Representative’s Position

The worker’s representative submits:

The worker had a catastrophic accident, which resulted in severe injuries.
The medical evidence in the file supports the worker continues to have significant pain and restrictions with respect to his injuries.
The medical opinion for the worker’s treating physicians is that the worker is unable to work due to his work-related injuries.
The worker also suffers from posttraumatic stress disorder and post-concussion syndrome related to the workplace accident.
While the worker was able to go to the gym and perform exercises, he would pay the price for it later by being in severe pain.
The worker explained how he could perform the exercises as seen in the video evidence, while at the gym. The worker’s explanation is reasonable.
While the worker was listed as an owner of a company, the company was later inactive and the worker did not receive any pay for the work he performed for the company.
The worker’s testimony is not contradicted.
The visual evidence from the worker’s time in the gym skewed the Case Manager’s opinion in arriving at their decision.

Worker’s Testimony

The worker testified to the following related to the issue before me:

In 2016, he was a Roofer and on January 5, 2016, he was involved in a significant workplace accident, where he fell off a roof about 36 feet high and sustained multiple injuries, for which surgery was required.
As a result of the injuries, he continues to suffer from severe pain to the point that he feels he is going to die. Once he stops moving, his ankles freeze.
He did not benefit from physiotherapy treatment.
He recalled going to the gym over 50 times in about a one-year span. He attended the gym to try to get better. While at the gym, he gave it his all.
After going to the gym, he would go home, as he was not be able to walk. He would be disabled for half a week afterwards. It felt like he was in jail.
The worker explained that while his workout at the gym appear to be intense, they were not. He described how he is trained in mixed martial arts and that he gained knowledge on how to punch and kick properly.
He stopped going to the gym after the Case Manager communicated that he misrepresented his level of impairment.
He was 100% truthful that he could not move due to his injures and that his ankles freeze.
Due to his ankle conditions, he needs to wear straps, so his ankles do not bend.
He had bad judgment by going to the gym, but did so as motivation for others who are recovering from significant injuries.
He is always in pain.
He suffers from post-concussion syndrome including headaches and from nightmares due to the fall at work.
He did perform work for a company that was created by his brother-in-law. It was a roofing design company and not a roofing company. The company only did one roofing job that was subcontracted. He has never been paid for working for the company despite being noted as the owner of the company.

AUTHORITY

Operational Policy Manual:

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, the worker’s testimony and the relevant operational policy in reaching this decision.

I find the worker is not entitled to LOE benefits from December 2, 2017. The reasons for my decision follow.

Operational Policy 18-03-02 related to entitlement to LOE benefits states in part:

A worker who has a loss of earnings as a result of a work-related injury (my emphasis added) is entitled to payment of loss of earnings (LOE) benefits.

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.

As such, for the worker to be entitled to LOE benefits from December 2, 2017, the evidence must show that his LOE resulted from his work related injuries.

I note that entitlement in the claim has been accepted for injuries to the worker’s bilateral wrist, bilateral ankles, left lower leg and low back. There is no entitlement in the claim for a traumatic brain injury and/or posttraumatic stress disorder.

A review of the file reveals:

The worker attended a gym from November 1, 2017 to October 2, 2018, 52 times.
Surveillance was done in December of 2017 and January 2018 by Regulatory Services. Surveillance revealed the worker shovelling snow on one occasion.
Social media searches by Regulatory Services showed the worker working out at a gym, attending business events and roofing houses. Further investigation with roofing contractors and homeowners provided evidence that the worker was working during the time he stated he could not leave his home.
There are currently 18 videos in the record of the worker attending a gym between October 23, 2017 and September 22, 2018.
On July 13, 2021, the worker pleaded guilty at Provincial Offences Court to one count of Making a False Statement contrary to Section 149(1) and one count of Fail to Report a Material Change contrary to Section 149(2) of the Workplace Safety and Insurance Act.
Dr. Moran’s report dated April 13, 2021 to the worker’s representative states that the worker still has significant bilateral ankle pain, right greater than left, bilateral wrist pain and low back pain. The worker also has posttraumatic stress disorder. The doctor opined that worker’s conditions were prolonged and severe and that the worker is unable to work at his former occupation, and due to his PTSD symptoms and post-concussion syndrome, he would be unable to return to any occupation at the present time.
Dr. Long’s March 21, 2022 report noted the worker has limited mobility in both ankles, the right wrist and lower back. Dr. Long opined that the worker was not mentally stable to work as a result of his injuries and with his limited physical ability, he is not capable of working at his previous occupation. Dr. Long added that the worker’s post-concussion syndrome affected him with elevated anxiety and emotional distress, which would impact his ability to work and function overall.

There is no dispute that the worker was involved in a significant work-accident, which resulted in significant injuries; however, the issue before me is whether the worker’s LOE from December 2, 2017, is related to his accepted work-related injuries.

A review of the 18 workout videos contained in the record reveals:

The worker participating in intense workouts, which included: punching, kicking, kneeing and elbowing a heavy bag, taking significant amount of forceful punches in the abdomen by other people at the gym and participating in a very physical battle rope exercise.
The videos show the worker has fluent bodily movements, including movements of his back, wrists and ankles.
The worker’s footwork was quick and unrestricted.
The worker had the full ability to stand without assistant with completed balance.
The worker’s back movements were unrestricted.
The worker was able to grip the heavy battle rope, while making quick arm movements.
The worker punched with speed and excessive force with no evidence of any wrist issues or restrictions.
There is no evidence that the worker experienced any type of pain with respect to the accepted work-related injury in this claim.
The worker was seen smiling in several videos.

I note the worker does not dispute his ability to perform any of the activities in the investigative videos, as the worker provided an explanation related to how he was able to perform the activities and the subsequent consequences, thereafter. The worker explained that after performing the exercises at the gym he would experience severe pain, which would make him housebound for several days due to a lack of ability to move. Based on my assessment of the evidence, I am unable to give the worker’s testimony regarding the duration of these activities (short in duration), the increase in his symptoms following the activities and the worsening in his functional abilities after performing the exercises any weight, as there is no supporting and/or corroborating evidence of this in the file. For example, there is no evidence in the record that shows the worker reported to his health care professionals that he was going to gym from November 1, 2017 to October 2, 2018 and performing intense exercises and that following the exercises his functional abilities would drastically decline, to the point he was in severe pain and unable to move. In addition, it is hard to fathom, why the worker would continue to perform the vigorous intensive gym exercises for an extended period of time (almost one year), if they would cause him the extreme pain and disability he reported.

I note that both Dr. Moran and Dr. Long opined the worker was unable to work due to his work-related injuries. However, there is no confirmed evidence that any of the doctors actually viewed the investigative evidence (videos, narrative reports or other documentary evidence) as a whole, which demonstrated the worker’s level of functioning was much greater than he reported. In addition, these medical opinions were based on information provided by the worker, who was found to have misrepresented his level of functioning in the past and pleaded guilty to making a false statement and reporting a material change. As such, I am unable to give any significant weight to the opinions of Dr. Moran and Dr. Long related to the worker’s level of impairment.

Based on my assessment of the visual evidence contained in the file along with evidence obtained by Regulatory Services as noted above, I place significant weight on the worker’s actual self-direct activities, which were freely undertaken when not under scrutiny by any of his health care practitioners, as evidence of his true abilities. I do not accept the worker’s functional abilities changed following attending the gym. Based on the visual evidence captured in the videos as summarized above, I am satisfied that the videos show the worker has no limitations and/or restrictions with respect to his work-related injuries accepted in this claim as of December 2, 2017. Thus, I find the worker has no limitations and/or restrictions with respect to his work-related injuries accepted in this claim.

As such, I find the nature or seriousness of the worker’s accepted work-related injury do not prevent the worker from returning to any type of work and that based on my determination that the worker has no limitations and/or restrictions with respect to his work-related injuries accepted in this claim, I find the worker was fit to return to his pre-injury job duties at no wage loss effective December 2, 2017. As such, any LOE the worker had from December 2, 2017, cannot be attributable to his accepted work-related injuries in this claim. Therefore, in accordance with Operational Policy 18-03-02, entitlement to LOE benefits from December 2, 2017 is denied.

CONCLUSION

Based on the evidence outlined in this decision, I conclude the worker is not entitled to LOE benefits from December 2, 2017.

The worker’s objection is denied.

DATED May 17, 2022

S. Crisostomo

Appeals Resolution Officer

Appeals Services Division