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4 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | September 2018 | News him to take time off work. Doiron was approved for workers' compensation benefits and the P.E.I. Workers' Com- pensation Board (WCB) set up a program with the aim of eas- ing him back to work. The pro- gram would start with modified sedentary duties and gradually increase his hours until he was able to return to full-time work. However, the program didn't go well and by July 2016 Doiron still wasn't back at work on a reg- ular basis. Doiron's case co-or- dinator from the WCB believed Doiron wasn't co-operating with the return-to-work and rehabili- tation plans — partly based on surveillance footage that sug- gested Doron had more func- tional ability than he was letting on — so the WCB stopped his benefits effective July 29. Four days later, on Aug. 2, Doiron called the WCB's cus- tomer liaison and said he didn't have a good relationship with his case co-ordinator. Each time he spoke with the co-ordinator, they interrupted each other and the conversations didn't go anywhere, Doiron said. He was frustrated that the WCB wasn't taking the advice of his doctors, who had recommended that he only work two to three hours every other day — the return- to-work plan had attempted to build up to more hours than that. Video surveillance raised suspicion The customer liaison advised Doiron that she would review his file and get back to him. After she reviewed the file, she sent it along with the surveillance footage to a WCB medical advisor. The sur- veillance footage was taken over several days between March 29 and July 16 and showed Doiron doing activities such as walking the dog, cutting grass and do- ing yard work, walking easily on uneven terrain, and working out at a gym — though Doiron had advised that his hip injury caused him to hobble, he was in constant pain, and he could "do a few things at home and might attend a half-hour meeting once in a while." The medical advisor felt Doiron showed "much more functional ability from the sur- veillance video than he reports being able to do to his caregivers and to his case co-ordinator on this claim." The medical advisor also noted that Doiron had at- tended city council meetings — lasting between 10 minutes and 3.5 hours — on a regular basis. On Aug. 17, the customer li- aison and the WCB's manager of employer and services adjudi- cation met with Doiron to show him the surveillance video and give him a chance to respond. Doiron said he wasn't hiding anything and he had never said he was totally disabled, nor was he aware that he could change his modified work plan if neces- sary. The WCB decided Doiron had been abusing the return-to- work and rehabilitation plans and determined on Sept. 8 that his claim for benefits would be closed, referring to its policy on fraud prevention and investiga- tion that defined program abuse as "any practice that uses the workers compensation program system in a way that is contrary to its intended purpose or the law." On Nov. 3, Doiron ran into the WCB investigator who had taken the surveillance footage at a fitness centre. Doiron swore at the investigator, called him a "rat," and said, "don't worry, I'll get you back." The following month, a WCB internal reconsideration officer denied Doiron's appeal of the decision to close his file for pro- gram abuse. Doiron appealed to the province's Workers' Com- pensation Appeals Tribunal, which initially found the WCB's decision to terminate benefits on July 29 was wrong — the WCB could only withhold ben- efits if the worker wasn't com- plying — but it found the later decision to terminate his claim for program abuse was correct, as Doiron hadn't provided "in- formation concerning his func- tional abilities and by understat- ing his abilities, using the system in a way that is contrary to its in- tended purpose or the law." The employer was flexible in offer- ing modified duties, but Doiron didn't provide any assistance in identifying suitable work or ad- vising of any duties beyond sed- entary ones he could perform, said the tribunal. Doiron appealed to the prov- ince's Court of Appeal, arguing the tribunal erred in law or ex- ceeded its jurisdiction on de- ciding he abused the program, failed to co-operate, and in inter- preting the P.E.I. Workers' Com- pensation Act. The court initially addressed Doiron's contention that the tribunal erred when it found he had abused the program with- out weighing the evidence. The tribunal's examination of the evi- dence was a question of fact, not law, that the tribunal had juris- diction to decide and the court declined to deal with it. As for the evidence and the WCB's decision, the surveil- lance video showed a reason for the WCB to suspect Doiron wasn't being completely forth- coming about his functional abilities. Though Doiron had no notice of the Aug. 17 meet- ing to discuss the video, he had an opportunity to respond then and almost another month to re- spond before the WCB decided to close his claim for benefits, said the court. The court found the tribunal properly weighed the video evi- dence, the proposed modified work plan, the employer's ac- commodations, and the medi- cal evidence. Its conclusion that Doiron abused the program fell within a reasonable range of out- comes, the court said. The court determined that the decision to terminate Doiron's workers' compensation benefits because he engaged in program abuse was reasonable based upon the evidence and was "transparent and intelligible." Doiron's appeal was dismissed. For more information see: • Doiron v. WCB (Prince Edward Island), 2018 CarswellPEI 58 (P.E.I. C.A.). Worker caught < pg. 1 Activities included working out and doing yard work Credit: Shutterstock/Sandra-Fotodesign

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