Canadian Safety Reporter

October 2018

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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3 Canadian HR Reporter, a Thomson Reuters business 2018 News | October 2018 | CSR Worker gives low effort in assessment, but full effort in appeal of benefits discontinuation Worker loses benefits for lack of effort in functional assessment, wins appeal for another hearing due to tribunal's error evaluating her case BY JEFFREY R. SMITH A NEW BRUNSWICK worker who lost her workers' compen- sation benefits because of a per- ceived lack of effort in functional ability testing has won her ap- peal to get a reconsideration of her case due to a lack of exami- nation of all the evidence. Elizabeth Paul worked as a cleaner at a hotel in Woodstock, N.B. On Dec. 29, 2011, Paul was moving a laundry cart on the stairs between floors at the hotel when she slipped and fell down the stairs. In the fall, she injured her left shoulder, left arm, but- tocks, and tailbone. Following the accident, Paul's doctor di- agnosed a contusion on her tail- bone. Over the next two months, Paul had difficulty sitting and standing due to her injuries. She saw another doctor in February 2012 who observed these issues and in April a physical medicine specialist determined her lum- bar flexion was only 25 per cent. Paul continued to experience ongoing back pain, chronic pain, anxiety, and depression, and in May 2012 she was given a medi- cal report that stated she had a "sleep disorder which was ag- gravating her chronic pain syn- drome." The report concluded that Paul needed "a full evalua- tion with psychology, occupa- tional therapy and physiothera- py as well." A few months later, Paul's family doctor diagnosed her with fibromyalgia — widespread muscle pain and tenderness in the muscle fibres — and also thought she might have depres- sion. Paul applied for and received worker's compensation benefits from Worksafe NB, which were suspended at one point and then reinstated in early 2014. On Jan. 14, 2014, the Worksafe NB team managing Paul's case decided to have her undergo a functional capacity evaluation. However, Paul's physiotherapist emailed Worksafe NB saying Paul would likely be assessed as not giving full effort on the evaluation due to her various issues and the as- sessment wasn't the best way to help Paul move forward. The evaluation went ahead and the occupational therapist assessing Paul concluded Paul gave a low effort on testing for grip strength, she had an inap- propriate heart rate response to activity, negative global effort testing, a lack of objective signs of physical effort, and clinical inconsistencies. The assessor added that the evaluation wasn't reliable because Paul gave inap- propriate responses to a symp- toms questionnaire, placebo tests, and functional testing, and she was inconsistent between her perceived ability and her ac- tual function. The occupational therapist noted that Paul was "pleas- ant, punctual and co-operative through the testing," which wasn't "consistent with the characteristics of someone who does not want to give full effort." The assessor observed Paul showed "high physical effort" in at least one instance and she used various pain management strategies during the testing. The report also indicated Paul's scores for numeric and visual pain were consistent and there was no suggestion her low effort was due to "the pursuit of sec- ondary gain." Due to the finding that Paul didn't give a full effort to the functional capacity assessment, Worksafe NB discontinued her benefits. Paul appealed the de- cision to the New Brunswick Workers' Compensation Ap- peals Tribunal, but the tribunal determined that there was "no objective evidence to challenge the findings of the (occupational therapist) that (Paul) demon- strated a low physical effort during the assessment." Since the New Brunswick Worker's Compensation Act stipulated that low physical effort during an assessment constituted ob- struction, the tribunal upheld Worksafe NB's discontinuance of benefits to Paul. Paul appealed the decision to the court, arguing the tribunal erred in law and didn't consider all the evidence — particularly her testimony on her fibromy- algia and why she couldn't give a full effort in the testing. The court noted that the Workers' Compensation Act and the Workplace Health, Safety and Compensation Com- mission and Workers' Com- pensation Appeals Tribunal Act dictated that the tribunal had an obligation to hear the case and "render a determination based on the merits and justice of the case." However, the court found the tribunal didn't meet this ob- ligation. The tribunal's decision made it clear that it only con- sidered what it felt was objective evidence such as the evaluation report. This put the onus on Paul to prove Worksafe NB was wrong, which was an error. In- stead, the tribunal should have considered all evidence — objec- tive and subjective — and all the merits of the case to determine if Worksafe NB could prove Paul didn't give a full effort in her as- sessment and therefore end her right to benefits. By shifting the onus on Paul to prove she deserved benefits from Worksafe NB to prove she didn't deserve them, the tribunal erred in law, the court said. It al- lowed Paul's appeal and referred the matter back to the tribunal for a new hearing. For more information see: • Paul v. Worksafe NB, 2018 CarswellNB 309 (N.B. C.A.). Credit: Shutterstock/Stuart Miles

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