Highlights of Noteworthy Decisions

Decision 545 18
26/03/2018
B. Kalvin - R. Ouellette - K. Hoskin
  • Abuse of process
  • Evidence (surveillance)
  • Evidence (weight) (court conviction)
  • Fraud

The worker suffered a low back injury in October 2007. The Board granted entitlement for the low back injury and for psychotraumatic disability. The Board rescinded entitlement to benefits as of June 2011, after reviewing surveillance evidence and determining that the worker had misrepresented the level of her disability and that she had fully recovered.

The worker was charged under s. 149(2) of the WSIA with wilfully failing to inform the Board of a material changed in circumstances. She was convicted, and was fined $6,000 plus a victim fine surcharge.
The worker appealed a decision of the Appeals Resolution Officer denying benefits after June 2011.
In this decision, the Panel considered the preliminary issue of whether the appeal should be prevented from proceeding on the grounds of abuse of process.
The Panel agreed with Decision No. 1002/16, which involved similar circumstances. As in Decision No. 1002/16, this was not a case of a minor degree of exaggeration but, rather, a wholesale misrepresentation of the worker's level of functioning.
The worker submitted that the failure to report the material change in circumstances did not mean that she was no longer disabled or that she was capable of returning to her pre-accident employment. However, the Panel noted the clear implication in the court decision that the worker was not an individual who was restricted in her mobility and limited in her physical abilities. The Panel interpreted this to mean that the worker did not have a physical injury or disability by the date of the surveillance in June 2001. Further, the claim for psychotraumatic disability was contingent on and secondary to the physical injury. To find that the worker was still partially disabled and incapable of returning to pre-accident employment would require a finding of fact in direct conflict with the finding in the court decision. Such a finding would not only duplicate judicial proceedings but might undermine the administration of justice by leading to potentially conflicting results. This is precisely the kind of harm that the doctrine of abuse of process is intended to prevent.
The Panel concluded that the appeal constitutes an abuse of process. The appeal was dismissed.