Highlights of Noteworthy Decisions

Decision 1553 19
03/10/2022
E. Kosmidis - C. Sacco - Z. Agnidis
  • Continuing entitlement
  • Evidence (surveillance)
  • Psychotraumatic disability
  • Non-economic loss {NEL}
  • Overpayment (fraud)
  • Permanent impairment {NEL}
  • Loss of earnings {LOE} (level of benefits) (hours of work)
  • Benefits (reduction or suspension) (material change in circumstances)
  • Loss of earnings {LOE} (eligibility) (impairment)
  • Suitable occupation
  • Work transition plan (eligibility)
  • Available employment (local labour market)
  • Major depressive disorder

The worker appealed several issues in this appeal. He had previously been granted an 18% Non-Economic Loss (NEL) award for his left ankle and 16% for psychotraumatic disability. His whole person impairment award was rated at 34%.

The appeal was allowed in part.
The Panel accepted that the worker's psychotraumatic disability arising from the May 30, 2012 workplace injury prevented the worker from returning to work or participating in retraining for the period from September 26, 2013 to August 26, 2014. On this basis, the Panel found that the SO of Electronics Assembler was unsuitable. The worker was entitled to full LOE benefits for the period from September 26, 2013 to August 26, 2014. Furthermore, the Panel found that the SO of Electronics Assembler was suitable during the period from October 5, 2015 to January 26, 2016. The SO did not exceed the worker's physical restrictions. As such, the worker's LOE benefits for this period were appropriately based on the earnings in this SO at full time hours. The worker's appeal of this issue was denied.
Next, the Board had rescinded the worker's NEL award for Psychotraumatic Disability entitlement based on a surveillance report and the Board's conclusion that the worker was operating his own landscaping business. With respect to his injury, the worker testified that he fell about 16 feet and landed on his left leg, resulting in a displaced fracture of his talar neck which required internal fixation. The worker underwent two surgeries and has been left with a permanent impairment of his left ankle. The worker's surgeon opined that the worker's injury "usually has lifelong consequences".
The Panel noted that the surveillance evidence on file is but one factor to be considered in determining whether the worker has a permanent psychotraumatic disability (see, for example, Decision No. 1798/21). While the worker was surveilled over nine days, the Panel found that the observations of the worker were not inconsistent with Dr. Gembora's November 25, 2015 report and diagnosis. While the worker had received beneficial treatment that resulted in an improvement in his psychological symptoms, there was no medical evidence of significance that the worker's psychological condition had fully resolved. Therefore, the worker's appeal of this issue was allowed. The worker's NEL award for Psychotraumatic Disability was reinstated.
However, the Panel found that the worker had failed to advise the Board that he was working as a landscaper and that he had started working as a landscaper from June 16, 2015. The Panel also found that the worker knew that this information should have been reported to the Board as a material change in circumstances. The Panel noted that the worker was observed over an extensive period of time performing work that was inconsistent with his restrictions. The Panel found that the worker misrepresented his level of impairment. Therefore, the worker's appeal on this issue was denied.
With respect to the overpayment, the worker's appeal of this issue was allowed in part. The Panel had found that the worker's NEL award for Psychotraumatic Disability should not be rescinded. Therefore, the amount associated with this entitlement was not a benefit-related debt, and the worker had no obligation to repay this amount back to the Board. Based on the February 26, 2016 letter from the Board, the worker received a NEL benefit payment of $13,454.99 plus interest for his Psychotraumatic Disability. Given that this decision has reinstated the NEL award, this amount was not recoverable from the worker. However, the Panel found that the worker's entitlement to LOE benefits from June 16, 2015 should be rescinded in view of the worker's failure to report a material change when he started working as a landscaper. As set out in OPM Document No. 18-01-04, "Recovery of Benefit-Related Debts", the Board pursues full recovery of a benefit-related debt resulting from a failure to report a material change in circumstances, and where it determines that the worker has committed fraud and/or provided false or misleading statements in connection with a claim for benefits. This Policy also provides that if the Board determines that an individual has provided a false or misleading statement, the debt is calculated retroactively to the date the individual was not entitled to the benefits.