Limited earnings capacity cannot terminate all extended earnings loss benefits
On May 15, 1990, while employed as a construction foreman, Neville Burton was injured and suffered injuries to his neck, back, left shoulder and arm. As a result of this workplace injury, Mr. Burton applied for workers’ compensation benefits.
On Jan. 27, 1997, the Workplace Health, Safety and Compensation Commission placed Mr. Burton on full extended earnings loss benefits based on its findings that Mr. Burton was not capable of returning to the workforce. In accordance with the commission’s policy on extended earnings loss, Mr. Burton was required to submit to periodic reviews to determine ongoing entitlement to benefits.
On Sept. 17, 1999, an investigation officer with the commission conducted a service check on Burton. The officer found Mr. Burton had just arrived home, with hands, face and clothing grease covered. He admitted to having just arrived home from a job involving a high-pressure washer but claimed that it was the first time he had done that work.
As a result of this incident, an investigation was conducted. Statements were provided from three individuals, each of whom confirmed they had seen Mr. Burton perform high-pressure wash jobs. When asked in the 1996 and 1997 extended earnings annual review questionnaires if he had worked during those years, he responded in the negative.
During the course of the investigation, the commission informed Mr. Burton that it was initiating legal action against him for earnings-related fraud. His benefits were terminated and an overpayment amount of $50,093.92 was claimed.
On Jan. 20, 2000, Mr. Burton appealed the decision of the commission and was permitted to provide further information. Burton provided a statement, indicating that he accompanied his wife and son on job sites but was rarely involved in the operation of the equipment. On those occasions when he did assist his wife or son, he suffered for this for days afterwards.
A commission’s internal review specialist, Karen Candow, reviewed the matter. She confirmed the decision of the case manager, based her decision on the evidence that Mr. Burton did not disclose all relevant information to the commission when the commission was making the determination of his entitlements to benefits. On April 24, 2000, Burton’s counsel submitted a request for review to the workplace compensation review division. A hearing was held before the review division’s chief review commissioner. On Sept. 18, 2000, the review division issued his decision. The review division agreed with the commission’s position that Burton had shown an earnings capacity. In such a case, he is not entitled to compensation benefits. The review for the request was therefore denied.
Burton brought an application for judicial review of the review division’s decision. The decision is only reviewable if it is patently unreasonable or an error was made in the interpretation of a legislative provision limiting the commission’s powers.
Burton argued that while the decision at each level reached the same conclusion that his benefits should be terminated and he should repay benefits received for 1997 to 1999, each of the decisions did so on different basis. This made it difficult for Burton to properly respond to the case before him at each appeal. The initial decision was based on earnings-related fraud, specifically the concealment of income from employment. The internal review specialist referred to both earnings-related fraud and capacity to work. The review division stated that the decision was based, not on earnings related fraud, but on the basis of earnings capacity.
The Court held that it was clear that there was no evidence that Burton received income from any “work” he did during the times in question. Therefore, the decisions based on income-related fraud were without evidentiary foundation. However, the decision under review is that of the review division which based its findings on earning capacity. The Court concluded that the review division’s finding that Burton had capacity to earn income was in accordance with the application legislation governing the commission and was supported by the evidence.
However, the Court did find that the decision of the review commission that all of the benefits payable to Burton should be suspended and all monies received by Burton between 1997 and 1999 repaid as patently unreasonable. Although there was some evidence before the review division that Burton had some capacity to earn income or work, there was no evidence before the review division to show the extent of that capacity and if that capacity was at or above his pre-injury level. The Court held that the only correct remedy was to reduce, rather than suspend or terminate, the compensation otherwise payable to Burton.
The matter was referred back to the commission to determine the degree of earning capacity of Burton and the amount of his entitlement to partial extended earnings loss benefits and to determine the appropriate amount to be repaid.
For more information:
• Burton v. Newfoundland (Workplace Health, Safety & Compensation Commission), Newfoundland Trial Division, Docket No. 2001 04T 0083, June 29/01.
On Jan. 27, 1997, the Workplace Health, Safety and Compensation Commission placed Mr. Burton on full extended earnings loss benefits based on its findings that Mr. Burton was not capable of returning to the workforce. In accordance with the commission’s policy on extended earnings loss, Mr. Burton was required to submit to periodic reviews to determine ongoing entitlement to benefits.
On Sept. 17, 1999, an investigation officer with the commission conducted a service check on Burton. The officer found Mr. Burton had just arrived home, with hands, face and clothing grease covered. He admitted to having just arrived home from a job involving a high-pressure washer but claimed that it was the first time he had done that work.
As a result of this incident, an investigation was conducted. Statements were provided from three individuals, each of whom confirmed they had seen Mr. Burton perform high-pressure wash jobs. When asked in the 1996 and 1997 extended earnings annual review questionnaires if he had worked during those years, he responded in the negative.
During the course of the investigation, the commission informed Mr. Burton that it was initiating legal action against him for earnings-related fraud. His benefits were terminated and an overpayment amount of $50,093.92 was claimed.
On Jan. 20, 2000, Mr. Burton appealed the decision of the commission and was permitted to provide further information. Burton provided a statement, indicating that he accompanied his wife and son on job sites but was rarely involved in the operation of the equipment. On those occasions when he did assist his wife or son, he suffered for this for days afterwards.
A commission’s internal review specialist, Karen Candow, reviewed the matter. She confirmed the decision of the case manager, based her decision on the evidence that Mr. Burton did not disclose all relevant information to the commission when the commission was making the determination of his entitlements to benefits. On April 24, 2000, Burton’s counsel submitted a request for review to the workplace compensation review division. A hearing was held before the review division’s chief review commissioner. On Sept. 18, 2000, the review division issued his decision. The review division agreed with the commission’s position that Burton had shown an earnings capacity. In such a case, he is not entitled to compensation benefits. The review for the request was therefore denied.
Burton brought an application for judicial review of the review division’s decision. The decision is only reviewable if it is patently unreasonable or an error was made in the interpretation of a legislative provision limiting the commission’s powers.
Burton argued that while the decision at each level reached the same conclusion that his benefits should be terminated and he should repay benefits received for 1997 to 1999, each of the decisions did so on different basis. This made it difficult for Burton to properly respond to the case before him at each appeal. The initial decision was based on earnings-related fraud, specifically the concealment of income from employment. The internal review specialist referred to both earnings-related fraud and capacity to work. The review division stated that the decision was based, not on earnings related fraud, but on the basis of earnings capacity.
The Court held that it was clear that there was no evidence that Burton received income from any “work” he did during the times in question. Therefore, the decisions based on income-related fraud were without evidentiary foundation. However, the decision under review is that of the review division which based its findings on earning capacity. The Court concluded that the review division’s finding that Burton had capacity to earn income was in accordance with the application legislation governing the commission and was supported by the evidence.
However, the Court did find that the decision of the review commission that all of the benefits payable to Burton should be suspended and all monies received by Burton between 1997 and 1999 repaid as patently unreasonable. Although there was some evidence before the review division that Burton had some capacity to earn income or work, there was no evidence before the review division to show the extent of that capacity and if that capacity was at or above his pre-injury level. The Court held that the only correct remedy was to reduce, rather than suspend or terminate, the compensation otherwise payable to Burton.
The matter was referred back to the commission to determine the degree of earning capacity of Burton and the amount of his entitlement to partial extended earnings loss benefits and to determine the appropriate amount to be repaid.
For more information:
• Burton v. Newfoundland (Workplace Health, Safety & Compensation Commission), Newfoundland Trial Division, Docket No. 2001 04T 0083, June 29/01.
