Highlights of Noteworthy Decisions

Decision 1275 19
R. Basa - M. Christie - A. Kosny
  • Evidence (surveillance)
  • Benefits (reduction or suspension) (material change in circumstances)
  • Standard of proof (offence) (material change in circumstances)

The worker suffered head, neck, back, shoulder and thumb injuries in a fall from a scaffold in May 2007. The Board granted the worker a 60% NEL award for psychotraumatic disability and the organic injuries. It also granted a personal care allowance and an independent living allowance. After receiving surveillance evidence from the employer, the Board found that the worker's capabilities were greater than reported. The Board rescinded benefits as of June 2009, and charged the worker under s. 149(2) of the WSIA for wilfully failing to inform the Board of a material change in circumstances.

The worker appealed a decision of the Appeals Resolution Officer to rescind benefits.
The worker was convicted of the charge under s. 149(2) by a Justice of the Peace. That conviction was upheld by the Ontario Court of Justice. However, the Ontario Court of Appeal set aside the conviction and ordered a new trial. The Board advised that it would not request a new trial.
The Court of Appeal set out that the following must be proved in order to obtain a conviction under s. 149(2): 1) the accused knew that a material change (meaning change that could affect entitlement to benefits paid by the Board) in health, income, employment status or other circumstances had occurred; 2) the accused intended not to inform the Board of that change; and 3) the accused intended, by that failure to inform, to receive benefits to which the accused was not entitled or foresaw that the failure to inform was substantially certain to result in receipt of benefits to which the accused was not entitled.
The Court of Appeal found that the factual findings of the Justice of the Peace were not sufficient to conclude whether the requisite mens rea was proven.
The Panel found that the worker suffered permanent organic injuries in the compensable accident. The surveillance evidence established that the worker continued to be impaired by his work-related injuries. The activities seen on the surveillance evidence were not inconsistent with the worker's functional abilities or his therapeutic goals. Further, the impairments resulting from the accident were medically documented beyond the date of the surveillance. The Panel concluded that the worker had permanent impairment of the neck, back, shoulder and thumb. The Panel directed that the NEL award for these conditions be reinstated.
The Panel found, however, that the surveillance evidence showing the worker operating a motor vehicle called into question the level of the worker's cognitive impairment. The worker was shown driving, on his own, on multiple occasions. This suggested that the NEL rating for cognitive impairment, conducted four months prior to the surveillance, was inaccurate. The Panel directed that the determination of the quantum of the NEL award for cognitive impairment, as well as determination of entitlement to the independent living allowance, personal care allowance and LOE benefits, be remitted to the Board.
The appeal was allowed in part.