Ontario (Workplace Safety and Insurance Board) v. Koomson, 2011 ONCJ 755

Citation: Ontario (Workplace Safety and Insurance Board) v. Koomson , 2011 ONCJ 755 IN THE MATTER OF the Workplace Safety and Insurance Act, 1997 , S.O. 1997, c. 16, Sched. A Between Her Majesty the Queen in Right of Ontario (Workplace Safety and Insurance Board) prosecutor and Douglas Asuming Koomson defendants Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Charge : willfully fail to inform the Workplace Safety and Insurance Board of material change in circumstances in connection with the entitlement to benefits within 10 days of such change occurring, contrary to s. 149(2).

Trial held : September 14 and 15, 2011. Judgment released : December 6, 2011. Counsel: R. Boswell , counsel for the Workplace Safety and Insurance Board K. T. Ackaah-Boafo , counsel for the defendant.

Cases Considered or Referred To: D. P. P. v. Beard, [1920] A.C. 479 (H.L.). R. v. Daviault, (SCC), [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77 (QL) (S.C.C.). R. v. Docherty, (SCC), [1989] 2 S.C.R. 941, [1989] S.C.J. No. 105 (QL) (S.C.C.). R. v. Lebeau, [1999] O.J. No. 4207 (QL), 47 M.V.R. (3d) 248 (Ont. S.C.), per Granger J. R. v. Stone, (SCC), [1999] S.C.J. No. 27 (QL) (S.C.C.). R. v. Theroux, (SCC), [1993] 2 S.C.R. 5 (S.C.C.). Rabey v. The Queen, (SCC), [1980] 2 S.C.R. 513 (S.C.C.). Statutes, Regulations and Rules Cited: Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched.

A, ss. 1, 23(3), 149(2), 157.1(1), 158(1). Authorities Considered or Referred To: Bloom, H. and Schneider, R.D. Mental Disorder And The Law: A Primer for Legal and Mental Health Professionals (Toronto, Ontario:Irwin Law Inc., 2006). Exhibits entered: Exhibit "1" - Crown Exhibit Book 1: WSIB Claim File No. 24645209 Vol. 1 regarding Douglas Koomson (656 pages). Exhibit "2" - Crown Exhibit Book 2 WSIB Claim File No. 24645209 Vol. 2 regarding Douglas Koomson (168 pages). Exhibit "3" - Crown Exhibit Book 3: WSIB Documents (Law, Guidelines, and Blank Forms) (16 pages).

Exhibit "4" - Crown Exhibit Book 4: King-Reid & Associates Inc. Investigation Report dated October 30, 2009, regarding DouglasKoomson (54 pages). Exhibit "5" - six unedited DVDs prepared by King-Reid & Associates Inc. regarding video surveillance of Douglas Koosman taken byDavid Rosenberg and Scott Griffin for October 1, 2009 (approx. 60 minutes); October 1 & 2, 2009 (approx. 49 minutes); October 2 & 3,

2009 (approx. 43 minutes); October 3 to 7, 2009 (approx. one hour and 8 minutes); October 14 & 19, 2009 (approx. 45 minutes); and October 19, 2009 (approx. 3 minutes). Exhibit "6" - original Future Shop receipt for a flat screen television model 37LH55 dated October 7, 2009 (one page). 1.

INTRODUCTION [ 1 ] The time has come to talk of many things — of a worker’s injuries and his apparent malingering — of his head trauma and diagnosed permanent cognitive impairment — of his loss of earnings and sixteen-hours-a-day personal care entitlement — and of why Douglas Koomson, the defendant, no longer is entitled to receive Workplace Safety and Insurance Board benefits — and whether the defendant had willfully failed to inform them of a material change in his circumstances which could affect his entitlement for monetary payments and therapists? [ 2 ] Those questions arise in this regulatory prosecution, in which the Workplace Safety and Insurance Board (“WSIB”) has charged the defendant with committing the mens rea offence of “willfully fail to inform the WSIB of a material change in circumstances in connection to his entitlement to benefits within 10 days of such change occurring”, contrary to s. 149(2) of the Workplace Safety and Insurance Act, 1997 , S.O. 1997, c. 16, Sched.

A .

And, as with any mens rea offence, the prosecution has the burden to prove beyond a reasonable doubt that the defendant had voluntarily committed the actus reus of the offence and that he had the requisite mental fault in regards to committing the actus reus of the offence. [ 3 ] In respect of the mens rea element, the defence argues there should be an acquittal since the defendant could not have formed the intention to commit the prohibited act or omission, or that he knew or ought to have known he had to inform the WSIB of a material change in his circumstances because of the serious head trauma that he had sustained from a fall at his workplace, which made him unable to return to work and which entitled him to monetary benefits from the WSIB totalling more than $8100 per month, and in which medical professionals had determined that he had sustained permanent cognitive impairment that required constant supervision from a personal care attendant because it was viewed that the defendant lacked the capacity to respond independently to an emergency situation.

In addition, the WSIB had determined from the medical reports submitted on behalf of the defendant that the defendant’s disability resulting from the head injury would be rated at 60% of a whole person.

As such, the defendant relies on those medical reports submitted to the WSIB, which determined the defendant incurred permanent cognitive impairment with memory deficits, and there being no medical evidence adduced at the trial which shows the defendant had fully recovered from his permanent cognitive impairment, to contend that the defendant lacked sufficient mental or cognitive capabilities at the time of the alleged offence to have or form the requisite mens rea for the offence.

Furthermore, the defence argues that the question of whether there had been a material change in the defendant’s circumstances or medical condition can only be determined by medical professionals and not be decided from simply viewing videotapes of the defendant and his activities. [ 4 ] The injuries that resulted in the defendant receiving compensable benefits from the WSIB occurred on April 17, 2007, when the defendant, who had been working as a drywall taper for Anco Contracting Inc., fell from a baker’s scaffold.

He fell from a height of two to four feet and struck his head on the ground and sustained serious head trauma. He was then taken by ambulance to the hospital where medical professionals treated and assessed the defendant and eventually determined that he had suffered permanent cognitive impairment from the head trauma he received from the fall.

He had also sustained physical injuries to his neck, lower back, right shoulder and a fracture to his left thumb, and then complained constantly about having pain in those areas to various medical professionals up to and after the time his WSIB benefits were suspended on January 26, 2010. He also regularly complained about having headaches and not being able to sleep, about being depressed, and about having no motivation to leave his house or to do any activities.

Because of these injuries and his inability to work, the defendant, who was 25 years old at the time of the work-related accident, made a claim for benefits under the Workplace Safety and Insurance Act, 1997 . [ 5 ] After t he WSIB reviewed and evaluated the medical reports submitted to them regarding the defendant’s injuries and cognitive deficits, they determined that the defendant was eligible and entitled to receive benefits under the WSIB’s Special Injury Program for health care services, for loss of wages, for the reimbursement of medications, for support services regarding personal care, and for non-economic loss that included an entitlement to a lump sum payment of $48,848.72 for his permanent impairment or disability.

The WSIB also determined the defendant would be unemployable at that time due to his permanent cognitive impairment. Furthermore, because of this cognitive impairment the Ministry of Transportation was notified of the defendant’s situation and the defendant’s driver’s license was suspended in 2007 for a period of one year. The defendant was also informed by a letter dated July 5, 2007, from his Occupational Therapist, not to drive a motor vehicle because he lacked the cognitive abilities necessary to drive safely.

A plan of rehabilitation for the defendant was also set up, to address his physical, cognitive, and psychological injuries, along with goals to make the defendant become independent in the community and to return him hopefully to some form of employment. One of the rehabilitative goals for the defendant in the second half of 2009 was for his Rehabilitation Support Worker to teach and train him to take or use public transit to make him become more independent in the community.

[ 6 ] However, on August 11, 2009, before the defendant was to begin his public transit training, the defendant’s employer, Anco Contracting Inc., submitted three DVD discs to the WSIB showing the defendant independently driving a motor vehicle. After reviewing the contents of these DVD discs, the defendant’s WSIB case manager considered the defendant’s ability to drive independently to be inconsistent with what she and the WSIB knew of the defendant’s medical condition related to his cognitive impairment, which required the defendant to have constant supervision from a personal care attendant.

This inconsistency in the defendant’s health care status triggered an investigation by the WSIB into the defendant’s entitlement to continue receiving benefits. The WSIB then hired a private investigation firm to conduct surveillance and videotape the defendant’s activities over a three-week period in October of 2009.

The private investigation firm then prepared a written report dated October 30, 2009, and provided unedited videotapes to the WSIB of the defendant’s activities during that three-week period, which showed the defendant being able to do independent activities such as driving a motor vehicle and conducting personal and business transactions without the presence of his personal care attendant, and also do strenuous physical activity with ease, such as carrying heavy items and exercising vigorously at a gym.

After receiving and reviewing the report and the video surveillance of the defendant and his activities, the WSIB suspended the defendant’s benefits and notified the defendant by a letter dated January 26, 2010, that his Loss of Earnings and Personal Care Allowance benefits were suspended retroactive to October 1, 2009. On the date the defendant’s benefits were suspended, the defendant had been receiving tax-free monetary benefits that had totalled more than $8100 per month.

The WSIB also informed the defendant that he had been overpaid for the period between October 1, 2009 to January 26, 2010, in the amount of $11,970.60 for the Loss of Earnings benefits and $18,805.38 for the Personal Care Allowance. [ 7 ] Consequently, because the defendant did not inform the WSIB when he was legally required to do so within 10 days after the purported material change in his circumstances had occurred during the period of May 9, 2009 to March 26, 2010, namely, of being able to drive a motor vehicle independently, of being able to exercise vigorously, of being able to lift heavy objects, and of being able to conduct personal and business transactions in the community independently and without the presence of his personal care attendant, which changes could have impacted on his entitlement to WSIB benefits, he was charged by the WSIB with committing the s. 149(2) offence on March 30, 2010.

The trial of the charge laid against the defendant was then held over two days, on September 14 and September 15, 2011. At the trial, three witnesses testified for the prosecution while the defence did not call any witnesses. After submissions were heard, judgment was reserved, and the matter was adjourned to December 6, 2011, for judgment to be rendered. These, therefore, are the written reasons for judgment: 2.

THE CHARGE [ 8 ] The defendant had been charged with committing the following offence: Douglas Asuming KOOMSON did commit the offence of during the period of May 9, 2009 to March 26, 2010 at or near the City of Brampton in the Central West Region and elsewhere in the Province of Ontario did willfully fail to inform the Workplace Safety and Insurance Board of a material change in circumstances in connection with his entitlement to benefits within 10 days after the change occurred, contrary to section 149(2) of the Workplace Safety and Insurance Act, 1997, S.O. 1997,

Chapter 16 as amended. 3. BACKGROUND (

A) The Defendant’s Workplace Injury, Medical Assessments, And Treatment Plans [ 9 ] On May 17, 2007, the defendant, while employed as a drywall taper with Anco Contracting Inc., fell from a baker’s scaffold, struck the floor, and hit his head. He had been working two to four feet above the ground. The defendant sustained a significant head injury from the fall. The defendant was first taken by ambulance to the William Osler Health Centre in Brampton and then later transported to Toronto Western Hospital.

He remained at Toronto Western Hospital for over three weeks after the workplace accident. [ 10 ] Tests were done on the defendant in which he was diagnosed with a closed head injury. A CT scan of the defendant’s head had been done that revealed the defendant had a right subdural hematoma and epidural hematoma, a fracture of the temporal bone, and a subarachnoid hemorrhage in the front parietal area. However, he did not require any surgery. After the defendant was examined and assessed by medical professionals, it was determined that the defendant sustained both physical and cognitive injuries from the fall.

It was also determined that the defendant sustained permanent cognitive impairment because of his head injury.

[ 11 ] After the defendant was released from Toronto Western Hospital, he was transferred to the Toronto Rehabilitation Institute on June 12, 2007, for treatment. The defendant also complained of having headaches, neck pain, low back pain, and right shoulder pain.

He was treated at the Toronto Rehabilitation Institute until December 2007, when he was discharged because of his limited progress and lack of goals. [ 12 ] At this point in 2007, the medical reports and assessments indicated that cognitively the defendant appeared to have memory difficulties, decreased attention, headaches, decreased activity tolerance, poor decision making, word finding difficulties, poor organizational skills, poor pragmatic language functioning, poor reading comprehension, sleep difficulties, and difficulty with interaction, while his physical ailments consisted of shoulder, neck, and low back pain. [ 13 ] The WSIB had also retained the Credit Valley Rehabilitation Centre in Mississauga to assess the defendant for a rehabilitation plan.

On September 6, 2007, an initial assessment report was prepared by them (pp. 980-990 of Exhibit #1), which indicated that the defendant needed a full multi-disciplinary team assessment for speech and language, the services of a social worker, and nursing services, as the defendant had showed obvious cognitive impairment, diminished memory function, and that his ability to communicate ideas had been poor. [ 14 ] The defendant then began to see and be treated by several medical professionals in 2007.

Moreover, the WSIB received many reports and assessments from these various medical professionals regarding the defendant’s physical, psychological, and cognitive condition. [ 15 ] In the Credit Valley Rehabilitation Centre Multi-Disciplinary Team Progress Report No. 2, dated January 10, 2008, that was submitted to the WSIB (pp. 932-939 of Exhibit #1), it had indicated that the defendant was showing slow progress, and that he made “subjective” complaints of headaches, right shoulder pain, low back pain and low mood, but had been benefitting from specific rehabilitation interventions. [ 16 ] Furthermore, in the Neuropsychological Report dated March 5, 2008, that was submitted to the WSIB (pp. 907-918 of Exhibit #1), Dr.

Patricia DeFeudis of the Credit Valley Rehabilitation Centre recommended that the defendant continue with a rehabilitation program that included cognitive remediation training. She also recommended that a psychiatric consultation was needed to clarify the extent of the defendant’s depression. Furthermore, she reported under group activity that the defendant had showed low interest in engaging in any activity. [ 17 ] Also, in a report dated July 10, 2008, and forwarded to the WSIB (pp. 885-886 of Exhibit #1), which had been initially addressed to Dr. Kofi Wudom (the defendant’s physician), Dr.

Chantal Vaidyanath, a psychiatrist at the Toronto Rehabilitation Institute, reported that the defendant had shoulder pain and impingement syndrome, but had been able to lift objects and had a full range of motion for his shoulder and had a good range of motion for his neck, and that he had a negative rotator cuff tear test.

However, she also reported the defendant had headaches, his mood was low, and that he had a decrease in concentration, energy, and interest, as well as a decrease in appetite. [ 18 ] Moreover, in the Physiotherapy Initial Assessment Report dated July 24, 2008, prepared by Connie Routhier, a physiotherapist at the Credit Valley Rehabilitation Centre, and submitted to the WSIB (pp. 882-884 of Exhibit #1), she indicated that the purpose of the assessment was to determine if physiotherapy treatment could help with the defendant’s ongoing pain in his lumbar spine that had been determined to be mechanical in nature and a joint dysfunction of the lower lumbar spine on the defendant’s left side. [ 19 ] In addition, the defendant had also been receiving rehabilitative services from Bartimaeus Inc., which included the service of a Rehabilitation Support Worker. (

B) The Defendant’s Compensable Benefits As Determined By The WSIB [ 20 ] Anco Contracting Inc., as legally required, had reported the accident to the WSIB. A claim for benefits under the Workers Safety and Insurance Act, 1997 was then commenced for the defendant, as a result of the work-related injuries sustained by the defendant. This legislation establishes a no-fault insurance scheme for employers and provides for a system of benefits for workers who are injured in their employment.

[ 21 ] Hence, based on the defendant’s medical reports and assessments, the WSIB determined the defendant’s injuries from the fall were compensable and that he would be eligible for benefits under the Workers Safety and Insurance Act, 1997 , for which they would also calculate the quantum of those benefits.

Also, for the purpose of determining the type and amount of the benefits he would be entitled to, the defendant’s accepted diagnosis was a head/brain injury with persistent cognitive deficits; decreased memory, concentration and information processing; headaches; and mechanical low back pain cervical strain, and a left thumb fracture.

The defendant was also deemed unemployable by the WSIB at that time due to his severe cognitive impairment. [ 22 ] In respect to benefits, the WSIB determined, first of all, that the defendant would be entitled to receive full “Loss of Earnings” benefits from May 18, 2007, which would be 85% of the net wages he had been receiving at the time of the injury.

On August 28, 2009, the defendant was receiving $842.33 a week from the WSIB for loss of earnings. [ 23 ] Then after further medical assessments were completed the WSIB determined that the defendant would be eligible for benefits under the Serious Injury Program because of his permanent cognitive impairment.

To be eligible for this program, a worker’s work- related disability has to be at 100% and permanent, or that a worker’s degree of impairment must be permanent or likely to be permanent and rated in comparison to a whole person, in which this rating must be at least 60% of a whole person to be eligible for benefits under the program. Moreover, for those in this program, an allowance may also be provided for the injured worker to pay for a personal care attendant.

In the defendant’s case, the WSIB determined that he would need the constant supervision of a personal care attendant for general supervision because it was determined that he lacked the capacity to make independent decisions for emergency situations. [ 24 ] For a second benefit category, the WSIB determined the defendant would receive a “Personal Care Allowance” effective July 19, 2007, that would pay for a personal care attendant for 16 hours a day at the rate of $8 an hour. The Personal Care Allowance that was being paid to the defendant as of August 29, 2009, was calculated to be $4246.38 a month.

The defendant also had to option to use this Personal Care Allowance to hire a personal care attendant or choose a family member to provide the personal care services. Moreover, the defendant was not required to account to the WSIB on how he used the Personal Care Allowance, but the defendant did designate his wife to be his personal care attendant.

The defendant was also married in May 2009. [ 25 ] The WSIB then informed the defendant on February 10, 2009, that their information indicated he had achieved maximum medical recovery and was now ready to be reviewed for a Non-Economic Loss Award and that his new team would consist of Valerie McMurdo, as the Case Manager, Emie Devera, as the Nurse Consultant, and Eva Kolodzieski, as the Occupational Therapist for the Non-Economic Loss process.

As to their roles, the case manager rules on entitlement for benefits; the nurse consultant rules on health care entitlement regarding medication and health care need or treatment, such as physiotherapy; and the occupational therapist makes decisions related to the purchase of equipment, vehicle modifications, and personal care allowance. [ 26 ] For a third benefit category, the WSIB determined that the defendant was entitled to a “Non-Economic Loss” or Permanent Disability Award, which is to compensate him for a permanent physical, functional, or psychological loss, which he had sustained as a result of his work-related injury.

This particular benefit is determined when the defendant’s condition has reached a point where no further improvement can be expected.

The amount of the Non-Economic Loss Award paid to the defendant is based on a legislated base amount multiplied by the impairment rating indicated for the defendant. [ 27 ] Moreover, in determining the defendant’s impairment rating the defendant’s type of injury and the information and reports from the defendant’s doctors that were submitted to the WSIB are reviewed and then compared to the American Medical Association Guides for the Evaluation of Permanent Impairment to select the level of impairment to use. This evaluation set the impact of the defendant’s loss at 60%.

As of May 5, 2009, the Non-Economic Loss Award that the defendant was to receive for every month for the rest of his life was calculated to be $278.38. The monthly Non-Economic Loss Award payment would also be indexed each January 1st. However, instead of receiving this regular monthly payment, the WSIB also gave the defendant the option to take his Non-Economic Loss Award as a one-time lump sum payment totalling $48,848.72.

The defendant’s legal representative then notified the WSIB by a letter dated May 8, 2009, that the defendant would opt for the lump sum payment of $48,848.72, instead of receiving regular monthly payments. [ 28 ] For a fourth benefit category, the WSIB awarded the defendant a yearly lump sum payment for the “Independent Living Allowance”, which is calculated at 60% of his Non-Economic Loss Award. For 2009, this allowance was calculated to be $3,560.10.

Furthermore, the defendant is permitted to spend this allowance as he chooses to help him live independently, such as paying for snow shoveling, grass cutting, home maintenance, fitness programs, support therapy, taxi fare to community events, or to purchase items under $250, such as for hobby items or computer supplies. [ 29 ] And, for a fifth and sixth benefit category, the WSIB would reimburse the defendant fully for the cost of all medication and that health care services he required would be provided to him.

[ 30 ] In addition, his benefits would be adjusted yearly for an increase in the cost of living. [ 31 ] Therefore, in 2009 the defendant was receiving more than $8100 every month tax free from the WSIB. (

C) The Requirement Of A Personal Care Attendant For The Defendant For 16 Hours A Day [ 32 ] The prosecution contends that the key material change in the defendant’s circumstances concerns the monthly Personal Care Allowance given to the defendant for a personal care attendant. In particular, it is contended that the personal care attendant was no longer needed or being used by the defendant.

The prosecution further argues that the October 2009 videotapes show the defendant being able to drive a motor vehicle and be independent in the community on many occasions without the presence of his personal care attendant, who happened to be his wife, during the period of May 9, 2009 to March 26, 2010. [ 33 ] It was Sheilagh Sherman, an occupational therapist in the Serious Injury Program of the WSIB, who had first determined that the defendant required the services of a personal care attendant.

She had prepared the defendant’s personal care assessment on August 16, 2007 (pp. 1228-1231 of Exhibit #1), and concluded that the defendant required constant supervision to ensure his safety in emergency situations because of his higher level cognitive deficits, for which the WSIB would pay for a caregiver or personal care attendant for 16 hours per day: Because of the higher level cognitive deficits, effecting executive functioning, Mr. Koomson requires constant supervision, to ensure his safety in emergency situations.

Thus, the attached Activities of Daily Living Scale (ADLS) form provides for time for general supervision. … Mr. Koomson reportedly drove prior to his accident. He has since has his drivers’ license suspended due to medical conditions. Mr. Koomson indicated that he takes taxis to medical appointments. His father reportedly drives him to other destinations. … WSIB supports constant caregiving at 18 hours per day, as 6 hours are not paid while the caregiver is sleeping. Time that is spent in treatment is deducted from the weekly time spent in caregiving, as direct care is not required by the caregiver.

In addition, time provided by the rehab support worker is deducted from the weekly time spent in caregiving by family members, as the rehab support worker is able to provide supervision over the time the worker is present and WSIB pays the agency directly for the rehab support worker. … Thus, the remainder of the caregiving that is provided by family/friends for supervision is 16 hours per day (18 hours per day minus 2 hours per day). [ 34 ] Furthermore, Sheilagh Sherman sent the defendant a letter dated September 12, 2007 (pp. 1232-1234 of Exhibit #1), explaining the Personal Care Allowance that was being awarded to him and that it had been determined that he required assistance in regards to general supervision and that his Personal Care Allowance award would be $3,882.40 per month effective October 1, 2007, and that he would also receive a retroactive adjustment cheque for $9,300.80 to cover from July 19, 2007, the date the defendant had been discharged from the hospital, to September 30, 2007.

This letter also contained a reminder to the defendant that he was required to inform the WSIB about any change in his work-related medical condition so his personal care needs could be re-assessed. The reminder also informed the defendant that a change in his work-related medical condition was a material change that had to be reported to the WSIB [ emphasis is mine below ]: Personal Care Allowance Review

We will review your personal care needs as needed. If your work-related medical condition changes, you are required to advise us as your personal care needs may [be] re-assessed . This is a material change and must be reported to the WSIB . If your PCA is reviewed, the PCA may increase, decreased, or remain the same based on your functional status. [ 35 ] Moreover, the Personal Care Allowance is an economic benefit paid to the defendant.

The defendant was also permitted to hire someone to provide him with this personal care or he could have a family member provide this personal care, but would still receive the same Personal Care Allowance whether he elected to use a family member or someone outside his family.

In their assessment of the defendant’s circumstances, the WSIB had determined that the defendant required constant supervision from a personal care attendant because if there was an emergency situation, such as a fire alarm going off in his residence, it was viewed that he would not be able to properly react to that situation for his own personal safety, as a result of his permanent cognitive impairment. (

D) Neuropsychologist’s Assessment Of Defendant On March 5, 2008 [ 36 ] The defendant was also examined by Dr. Patricia DeFeudis, a registered psychologist, on December 14, 2007, and January 30, 2008, at the Credit Valley Rehabilitation Centre, in which numerous tests, such as the Halstead-Reitan Aphasia Screening Test, were done on the defendant. Dr. DeFeudis reported in her

summary that there were some inconsistencies in the defendant’s performance and in the defendant’s description of his psychological functioning (p. 917 of Exhibit #1) [ emphasis is mine below ]: Although Mr. Koomson presents as essentially providing a good effort on cognitive tasks, there were some inconsistencies in his performance and in his description of his psychological functioning . [ 37 ] However, Dr.

DeFeudis’s clinical impression, based on her current evaluation, was that the defendant’s cognitive functioning would likely continue improving, although at that time she noted that the defendant presented as being dependent on external structure to maintain a productive and adaptive lifestyle.

She also noted that the severity of the defendant’s difficulties is unusual and that his complaints about problems are broadly-based and in one case his endorsement of symptoms is inconsistent with his presentation (p. 917 of Exhibit #1) [ emphasis is mine below ]: The current neuropsychological profile reveals extremely low intellectual functioning which reflects loss based on Mr. Koomson’s educational and work history. Verbal functioning was demonstrated in the borderline range and visual-spatial or adaptive abilities in the extremely low range. The difference between Mr.

Koomson’s verbal abilities and adaptive functioning demonstrated it is unlikely to be clinically significant and Mr. Koomson’s similarly weak performance on measures of academic functioning is unexpected given his Canadian educational achievements. It may be that Mr. Koomson’s capacity to sustain attention has diminished to the extent that it precludes his engagement in many of the tasks presented.

However, a few areas of strength were demonstrated, including relatively intact problem solving skills in the visual modality on one measure which did not require carry-over of any idea from one trial to another and relatively intact constructional abilities. However, in both cases Mr. Koomson’s functioning was not at expected pre-injury levels.

The most salient cognitive difficulties were executive in nature, including diminished capacity for problem solving, which depended on maintaining an idea over a number of trials, as well as inattention and apparently weak planning and organizational skills when faced with learning tasks. Also noteworthy is slow processing speed and compromised language skills, including possible deficient auditory comprehension. Although these problems are not inconsistent with the nature of Mr.

Koomson’s injury as indicated by radiological investigations, in particular temporal lobe and frontal lobe involvement, the severity of the difficulties is unusual, as well as the somewhat uneven pattern of strengths and weaknesses . It may be that depression is contributing to his cognitive symptoms. Emotionally, Mr. Koomson is reporting significant distress and again problems are broadly-based and in one case inconsistent with his presentation, that is, his endorsement of symptoms indicating a manic episode . Although results indicate adequate attention to item content, it may be the case that Mr.

Koomson misinterpreted some of the questions in the inventory. Given that only 7 ½ months have elapsed since the accident and the current evaluation, continued improvement in Mr. Koomson’s cognitive functioning is likely to occur . At the present time Mr. Koomson presents as dependent on external structure to maintain a productive and adaptive lifestyle .

[ 38 ] Dr. DeFeudis then recommended the defendant continue with a rehabilitation program that included cognitive remediation training to increase his independence in regards to activities of daily living, a psychiatric consultation for the extent of the defendant’s depression, continued participation in speech therapy, and participation in group activities to develop an awareness of his vulnerabilities (at p. 917 of Exhibit #1): It is recommend that Mr.

Koomson continue with a rehabilitation program that includes cognitive remediation training to address the range of difficulties identified, as well as to provide Mr. Koomson with strategies to facilitate planning and increase his independence with respect to activities of daily living. The assistance of a rehabilitation support worker will likely be helpful to provide Mr. Koomson with the structure to implement treatment recommendations. A psychiatric consultation is recommended to clarify the extent of Mr.

Koomson’s depression and to make treatment recommendations In addition, continued participating in Speech Therapy is recommended to address significant communication problems, including diminished capacity with respect to auditory processing and auditory recognition. As noted in the Speech Therapy report, Mr. Koomson’s problems appear to be largely related to cognitive control of language functioning, that is making sense of information, as well as emotional expression, rather than auditory acuity. Ms. Dharani also noted that Mr.

Koomson’s ‘ability to explicitly deduce or infer was limited and as such affected his decision-making skills” (page 5 of report) and this conclusion is consistent with results obtained on the cognitive measures employed in this examination. Ms. Dharani noted that limited awareness of his strengths and weaknesses may be related to Mr. Koomson’s cognitive communication difficulties (page 6 of report). Mr. Koomson may also benefit from participation in a group activity to develop an awareness of his vulnerabilities and to practice compensatory strategies. … (

E) Medical Report Completed On April 6, 2009 For The Defendant’s Non-Economic Loss Assessment [ 39 ] A medical report for the Non-Economic Assessment was prepared on April 6, 2009, by Dr. J. A. Mayer, a neurological surgeon (pp. 1248-1252 of Exhibit #1), in which he indicated that during his assessment of the defendant on April 6, 2009, the defendant’s father did most of the talking and explaining for the defendant. Dr. Mayer also noted that the defendant complained of pain in his right shoulder, neck, and back. However, in Dr.

Mayer’s opinion, the defendant had demonstrated submaximal effort when he was tested for neck strength and had showed many inconsistencies that indicated many nonorganic features [ emphasis is mine below ]: During the history and for most of the examination, Douglas Koomson’s father did most of the talking abnd explaining. Only towards the end of the examination did Douglas Koomson relate any facts. … During the history, Douglas Koomson sat in a chair and was uncommunicative. In direct questioning, however, he would respond.

He knew that it was April 6, 2009. … He demonstrated submaximal effort when testing neck strength against resistance, collapsing his neck easily. … Opinion

Douglas Koomson did suffer head injury on May 17, 2007 and did have intracranial bleeding. However, surgery was not indicated. Today there are many inconsistencies, indicating many nonorganic features. … In

summary then, Douglas Koomson did have an intracranial injury. He is complaining of pain in his right shoulder, neck and back. He shows many inconsistencies. (

F) The Defendant’s Attendance At Psychologist’s Office For Neuropsychological Re-Assessment On May 22, 2009 [ 40 ] Prior to the defendant’s benefits being suspended on January 26, 2010, an appointment with Dr. Patricia DeFeudis, a registered psychologist, had been arranged for May 22, 2009. At that meeting, Dr. DeFeudis was unable to complete the neuropsychological examination because the defendant complained of pain and not feeling well. Furthermore, the exam had to be concluded prematurely because Dr.

DeFeudis felt that no reliable information would be obtained from the defendant because the defendant was uncomfortable and evasive when describing his symptoms and that he was reluctant to participate in the examination (see pp. 825-826 of Exhibit #1): During the interview, it was my impression that Mr. Koomson was uncomfortable and evasive when describing his symptoms and that he was reluctant to participate in this examination.

Given his presentation today it is my opinion that continuing the examination will not result in reliable information. [ 41 ] In addition, after the defendant’s benefits were suspended the defendant contacted Emie Devera on January 26, 2010, and indicated that he wanted psychological treatment. Devera testified that a referral for psychological treatment could only be authorized if a doctor recommended it. (

G) Rehabilitation Plan And Goals To Make The Defendant Independent In The Community [ 42 ] In the Serious Injury Program of the WSIB, the defendant was provided with a multi-disciplinary support team , which consisted of a Case Manager, a Nurse Consultant, and an Occupational Therapist. The defendant’s support team had met together to learn about his case and to find the best solution for him. [ 43 ] The WSIB also provided the defendant with rehabilitation services for his physical, psychological, and cognitive impairments, and for the purpose of reintegrating him back into general community activities.

As part of the defendant’s rehabilitation plan or goals established by the rehabilitation services provider, one goal had been to eventually teach or train the defendant on how to take a bus or public transit to take him to the library and other places, so that he could be reintegrated into the community and learn to live more independently. [ 44 ] This goal would be important for the defendant’s reintegration and independence, as his driver’s license had been suspended for medical reasons in 2007 (see p. 778 of Exhibit #1). He had also been advised not to drive. (

i) Community reintegration goals for the defendant for June 2009 to August 2009 [ 45 ] In her Progress Report dated August 14, 2009, Cynthia Sprigings, the Rehabilitation Support Coordinator from Bartimaeus Inc., informed Emie Devera, the nurse consultant on the defendant’s Serious Injury Program team (p. 814 of Exhibit #1), that for the current intervention for the defendant’s Community Reintegration Goals, the defendant had been involved in going to Chapters, walking in the mall, visiting the library, and learning the Brampton transit system to promote future outings independently, and that the defendant also faced a challenge of not having personal transportation and looked forward to the days the RSW (Rehabilitation Support Worker) is able to take him to the YMCA for supervised workouts [ emphasis is mine below ]:

Community Reintegration Goals Goal 2. Participate in activities in the community. Promote independent functioning by using the local transit to run errands (i.e., grocery shopping; library; social/recreational events). Observation: From June to August 2009, Mr. Koomson has been engaging in the activities listed above with his RSW. Mr. Koomson requires lots of motivation/planning due to his lack of initiative and insight. Mr. Koomson has regular bouts of headaches, back pain and fatigue which diminishes his motivation to go into the community and leaves him in depressed state. The RSW is able to motivate Mr.

Koomson and get him out into the community twice a week. While in the community, Mr. Koomson has lots of difficulties with verbal interactions with people in the community, such as service providers, clerks, and sales people. Such tasks such as explaining what he would like (whether it would be ordering a sandwich or inquiring about a product) tends to very difficult and uncomfortable for him. At times he presents as being very socially inept.

Current Interventions: The community activities involve going to Chapters, walking in the mall, visiting the library, at learning the Brampton transit system to promote future outings independently.... Mr. Koomson and RSW are still working together to provide himself with the tools that he needs to interact in the community without being introverted timid. Recommendations: Mr. Koomson has shown that when experiencing headaches, back pain or fatigue, he tends to get into a downward spiral that affects his daily productivity. Due to a lack of motivation/initiation, and a fear of reinjury, Mr.

Koomson tends to stay indoors and becomes depressed with his current medical situation. Mr. Koomson’s daily maintenance of his lower back pain tends to get neglected. Mr. Koomson also faces a challenge of not having personal transportation and looks forward to the days the RSW is able to take him to the YMCA for supervised workouts . When Mr. Koomson is out in the community with the RSW, the RSW is able to motivate Mr. Koomson to leave his home and go out into the community on days he feels fatigued and lacks motivation. Mr.

Koomson needs to continue visiting the YMCA twice a week in order to achieve his physiotherapy goal and increase overall fitness which impacts daily productivity in a positive manner Without these services of the RSW, Mr. Koomson will tend to stay at home and dwell on his current situation. This tends to lead to a downward spiral in affect, which at times turns into depression. With the continued support from this RSW, Mr.

Koomson will be able to go out in the community twice a week to work and improve on his goals, increase his daily productivity through recreation programs and social outings. (ii) Community Rehabilitation Program Plan for October 2009 to December 2009 [ 46 ] From pp. 1324-1325 in Exhibit #1, Rawle Bynoe, the Rehabilitation Support Worker and Cynthia Sprigings from Bartimaeus Inc., informed Emie Devera, the defendant’s nurse consultant, in an email dated October 27, 2009, of their plan of action for the defendant for October 2009 to December 2009 and the

schedule of the plan to commence his public transit training to make the defendant more independent in the community, including the plan that the defendant would begin taking the bus on November 9, 2009, by himself, and that the defendant was willing to attempt this plan of action [ emphasis is mine below ]: Plan of Action

Mr Doug K has commenced his community reintegration/travel training program as discussed in our phone consultation. …

Schedule of Plan I will accompany Doug on the bus to the Y.M.C.A. for 6 sessions, from Oct 19 – Nov 5, 2009. During this period, we will practice the route, problem solve ie missing bus, assess for safety issues on the bus and in the community to prepare for independent travel. Beginning on November 9, 2009, Doug will take the bus independently and meet me at the Y.M.C.A. … The plan will continue until the end of December, reinforcing and repeating to improve client’s skill and confidence in the community and with independent travel.

Continued participation at Y.M.C.A./library would be useful to properly maintain/improve lower back pain issues and continue to improve cognitive deficiencies/develop compensatory strategies. This Action Plan has been reviewed with Doug K, who is willing to attempt it. Barriers to achieving Goal : Areas in which Doug may struggle are initiative to continue program (if unsupported), self-motivation to attempt activities in the community, anxiety and fear to leave home independently and conduct everyday functions. (

H) Surveillance Of The Defendant In October 2009 And Suspension Of The Defendant’s WSIB Benefits [ 47 ] In August 2009, over two years after the defendant’s fall and head injury, the defendant’s employer, Anco Contracting Inc. forwarded three DVD discs to the WSIB that showed the defendant carrying out tasks and activities. The defendant’s employer also advised the WSIB that the defendant’s activities, which included the defendant driving and being seen driving were inconsistent with the defendant’s medical reports and presentation he had maintained since 2007.

After the WSIB reviewed the DVD discs from the defendant’s employer, the defendant’s file was assigned to Regulatory Services of the WSIB to investigate the defendant. [ 48 ] A request for surveillance was also made by the defendant’s case manager, and on September 21, 2009, the Regulatory Services Division approved the request for surveillance of the defendant. The WSIB then hired King-Reid & Associates Inc., a private investigation firm, to conduct surveillance of the defendant.

David Rosenberg and Scott Griffin from King-Reid & Associates Inc. then conducted surveillance of the defendant from September 29 to October 19, 2009, and videotaped the defendant and his activities from October 1 to October 19, 2009.

The videotapes showed the defendant shopping and doing activities in the community without his personal care attendant, such as working out at a gym, driving a motor vehicle to the gym or shopping malls, purchasing items at Costco, conducting business at the credit department of the Brick Furniture Store, purchasing a flat screen television from Future Shop, driving to his parent’s house and retrieving mail from the neighborhood mailbox, and doing banking at two different banks.

The videotapes also showed him vigorously exercising and completing a gym program, lifting heavy objects, and engaging in lengthy interactions with people in completing business and personal transactions. [ 49 ] Valerie McMurdo, a case manager in the Serious Injury Program at the WSIB, and Emie Devera, a nurse consultant with the WSIB, both testified they were surprised with the inconsistency between what they read in the medical reports and assessments regarding the defendant’s permanent cognitive impairment and his need for constant supervision from a personal care attendant and what they had observed on the DVD discs showing the defendant’s activities over several weeks.

In addition, they both concluded that the defendant’s activities of driving a motor vehicle on his own had been inconsistent with the medical reports in the defendant’s file. Furthermore, McMurdo noted that the videotapes demonstrated that the defendant had various capabilities, which included driving independently, engaging in lengthy interactions with ease in order to complete business and personal transactions, completing a rigorous workout at the gym, and that the defendant had been lifting, bending, carrying, push and pulling without any obvious restricted movement or difficulty.

She also concluded from the defendant’s many activities captured on those videotapes that there was no reason to conclude that the defendant could not return to his pre-accident work. [ 50 ] McMurdo also said she observed on the King-Reid & Associates Inc. video surveillance, that the defendant had been driving independently, washing sports team uniforms at the laundromat, doing a vigorous workout at the gym independently, loading and unloading items from his car which included a television set, water bottle cases, rice bags, and other merchandise, and being at a

customer service desk conducting business for approximately 30 minutes and conversing with others. [ 51 ] After reviewing the King-Reid & Associates Inc. Investigation Report dated October 30, 2009, and viewing the video surveillance of the defendant from October 1 to October 19, 2009, McMurdo concluded that the defendant was not as disabled as the defendant had portrayed himself to be and that the extent of the injuries the defendant sustained in 2007 was at present questionable.

McMurdo also decided there was evidence in the medical reports of inconsistencies in the defendant’s presentation, effort, and response. In addition, McMurdo noted that the defendant was non-compliant and non-participatory in the Non-Economic Loss Assessment of April 6, 2009, and the Neuropsychological Assessment attempted on May 22, 2009. [ 52 ] Consequently, on January 26, 2010, McMurdo decided to suspend all benefits to the defendant based on the videotapes she had observed.

The benefits, which were suspended retroactive to October 1, 2009, included Loss of Earnings benefits, the Personal Care Allowance, and reimbursement for medications. It was also determined by the WSIB that they had overpaid the defendant for the period between October 1, 2009 to January 26, 2010, in the amount of $11,970.60 for the Loss of Earnings benefits. Furthermore, it calculated that the Personal Care Allowance was overpaid by $18,805.38 during the same period. Also, the Independent Living Allowance was suspended as of December 31, 2009, and had not been processed for 2010.

In addition, the defendant was no longer to receive health care services paid for by the WSIB. (

I) Medical Letters Provided By Defendant To WSIB In 2010 After Benefits Were Suspended [ 53 ] After the defendant’s benefits were suspended on January 26, 2010, the defendant submitted to the WSIB a letter written by Carlo Vigna, a registered psychologist, dated March 19, 2010, in which Vigna writes that it is highly improbable that the defendant is malingering and that from their interactions there had been no indication that the defendant was being dishonest [ emphasis is mine below ]: I can, however, address whether Mr. Koomson is malingering . I would consider this highly improbable .

My impression of him is that he is a highly anxious, passive young man who feels he has lost control over most aspects of his functioning, who feels confused much of the time, and who struggles in tuning into his experiences in an insightful, efficient manner. There is no indication from my interactions with him that he has a personality disorder and that he is being dishonest . [ 54 ] In Hy Bloom and Justice Richard D.

Schneider’s textbook entitled, “Mental Disorder And The Law: A Primer for Legal and Mental Health Professionals” (Toronto, Ontario: Irwin Law Inc., 2006), at p. 12, “malingering” is defined as the deliberate feigning of an illness or condition, or, the exaggeration of symptoms or disability, which is motivated by obvious external incentives or the prospect of (usually financial) gain: Malingering: The deliberate feigning of an illness or condition, or, the exaggeration of symptoms or disability, which is motivated by obvious external incentives or the prospect of (usually financial) gain.

Examples include faking illness to avoid military conscription, to evade criminal responsibility, to avoid work, and to win financial compensation in a civil suit or disability claim, etc. Malingering must be suspected in any medico-legal context. [ 55 ] The defendant also submitted to the WSIB a letter that had been initially addressed to Dr. Kofi Wudom from Dr.

Chantal Vaidyanath, a psychiatrist at the Toronto Rehabilitation Institute, dated March 16, 2010 (pp. 1310-1313 of Exhibit #1), that referred to the defendant’s injury as a “moderately severe traumatic brain injury”, and that contradicts Carlo Vigna’s opinion of March 19, 2010. Dr.

Vaidyanath opined that although objectively the defendant had a moderately severe pain injury, he may be “exaggerating his symptoms” and his recovery from his brain injury may have been stunted for several reasons, including “his desire to maintain the sick role for secondary gain”, but they cannot say that the defendant is without impairment because they are unable to properly assess him [ emphasis is mine below ]: 1. SLEEP – He still cannot sleep. He is unsure about the time he is able to sleep. He has not been taking any sleep medication. 2. MOOD – He saw Dr. Bhalerao last week. He did not recall what Dr.

Bhalerao recommended. He has not seen a psychologist for quite some time since his WSIB payments have been discontinued. He states he is sad all the time. He spends most of his day at home

and he is not in the habit of enjoying life. He is not sure if Citalopram helps. 3. PAIN – Pain continues in his right shoulder, lower back and head. There have been no changes in his symptoms. He takes Tylenol #3 for pain as well as Lyrica. … IMPRESSION AND PLAN … There is objective evidence that Mr. Koomson had a moderately severe pain injury. … It seems that his recovery from his brain injury has been stunted , which could be due to an amotivational syndrome secondary to a frontal lobe syndrome, a mood disorder, a desire to maintain the sick role for secondary gain , or a combination thereof.

While some symptom exaggeration and perhaps some somatization seem likely , we cannot say that he is without impairments, principally because we are unable to properly assess him . (

J) Reminders Or Notices Given To The Defendant About Informing The WSIB Of Any Change In Material Circumstances In Connection To The Defendant’s Entitlement To Benefits [ 56 ] The prosecution submits that the defendant did not advise the WSIB that he was able to interact independently in the community or be in the community without his personal care attendant, which they contend is a material change in circumstances in connection to his entitlement to benefits, and that knowledge of this requirement to inform the WSIB of this change can be reasonably imputed to the defendant from the reminders about the requirement to inform the WSIB of such material change that had been set out in various WSIB documents and letters that had been sent or given to the defendant, since the time his claim had been initiated with the WSIB. [ 57 ] Furthermore, although the defendant was residing at an address on Clark Boulevard in Brampton, the prosecution submits that all the defendant’s mail was still being sent to his father’s house at Dwyer Drive in Brampton where the defendant would go to get his mail.

Proof that the defendant was getting his mail was demonstrated on the videotapes of October 2009, which shows the defendant driving to his father’s residence on Dwyer Drive, then parking his motor vehicle, and the defendant then walking to the neighborhood mailbox to retrieve mail.

Moreover, David Rosenberg also observed the defendant sitting in his motor vehicle for about 18 minutes on October 1, 2009, going through various documents. [ 58 ] Although the WSIB is not legally obligated or required to remind the defendant about informing the WSIB of any material change in circumstances, the prosecution further submits that the WSIB nevertheless reminded the defendant in various documents or letters sent to the defendant.

For instance, the WSIB sends out a letter each year to the defendant informing the defendant that on January 1 st of the upcoming year that his benefits would be adjusted for a change in the cost of living and what that percentage change or adjustment to his benefits would be and a reminder about informing the WSIB about any material change.

Moreover, the reminders are virtually worded the same in these various letters or documents. [ 59 ] In addition, the following reminder about informing the WSIB about a material change is contained in several WSIB form letters that are sent out to injured workers, such as the annual cost of living adjustment letter, workers progress report form for the worker to complete and send in to the WSIB, the letter from the WSIB that informs injured workers that they their claim has been allowed for health care and loss of earnings benefits, and the WSIB letter sent to the injured worker after a claim is initially established in the name of the worker, which also requests the worker submit a Form 6 (Worker’s Report of Injury/Disease): An important reminder: If you experience changes to earnings, income, health status, job – or any other change that might affect your entitlement to benefits, we call this a material change.

It is important that you let me know of the change within 10 days. If you are unsure if your change is a material change, please call me and I can tell you. If you receive any WSIB benefits, you are required to report all material changes. If you do not, there could be a penalty. [ 60 ] These reminders provided by the WSIB to the defendant were contained in the various letters and documents that were sent or given to the defendant by the WSIB, after he sustained his injury on April 17, 2007, and his claim for benefits was initiated with the

WSIB. This forms the basis of the prosecution’s contention that the defendant had knowledge of or that he was well aware of his obligation or the requirement to inform the WSIB of any material change in circumstances in connection to his entitlement to receive benefits within 10 days of such change occurring. (

K) Summary Of Relevant Testimony From Prosecution Witnesses

(1) Valerie McMurdo, WSIB case manager [ 61 ] Valerie McMurdo testified she is employed with the WSIB as a case manager and had been the case manager of the defendant’s file from the early part of 2008 to October 2008 and then from February 20, 2009 to January 26, 2010, when the defendant’s benefits were suspended. She also said she has been with the WSIB since 1979. In addition, she said her duties as a case manager in charge of the defendant’s claim was to make entitlement decisions for the worker’s claim and on whether benefits are payable and to also ensure that payments are paid on time.

She also said she reviews medical reports and ensures that medical reports are assessed.

Furthermore, she said she reviews the level of impairment, progress, and refers health care issues to the nurse consultant and occupational therapist. [ 62 ] McMurdo also said that after she reviewed the medical assessments and reports in the defendant’s claim file, she concluded and viewed the defendant as being severely disabled. [ 63 ] In addition, McMurdo said she has not met the defendant personally or knew how he looked like until she observed him on the DVD discs submitted by the defendant’s employer, Anco Contracting Inc. [ 64 ] Furthermore, McMurdo said she had viewed on the DVD discs submitted by the defendant’s employer the defendant driving a motor vehicle independently and said it was inconsistent with what the medical reports had said about the defendant’s medical condition.

She also said she had received those DVD discs in August of 2009. After discussing this information with her superiors about the apparent inconsistency shown on the DVDs with the defendant’s documented medical condition in the defendant’s file, she decided to forward the defendant’s file to the Regulatory Services Division of the WSIB for investigation. She also requested surveillance of the defendant from the Regulatory Services Division on August 28, 2009, which they approved on September 21, 2009.

She further said that King-Reid & Associates Inc. was retained to conduct the surveillance of the defendant. [ 65 ] In addition, McMurdo said that after she had reviewed the six DVDs provided by King-Reid & Associates Inc. of the defendant and his activities from October 1 to October 19, 2009, and their Investigation Report dated October 30, 2009, and after further discussions with her superiors, she decided to suspend the defendant’s benefits on January 26, 2010, retroactive to October 1, 2009.

She then sent out a letter dated January 26, 2010, to the defendant informing him of the suspension of his WSIB benefits and of the overpayment of Loss of Earnings benefits and of the Personal Care Allowance. [ 66 ] McMurdo also said that the defendant had not notified her of any material change in his circumstances during the period in question. Furthermore, McMurdo said she did not think it was necessary to obtain a medical assessment or report to determine if there had been a material change in the defendant’s circumstances before suspending the defendant’s benefits.

(2) Emie Devera, WSIB nurse consultant [ 67 ] Emie Devera testified that she is a registered nurse and has been employed with the WSIB for 21 years. She also said her present job title with the WSIB is “Nurse Consultant” and her duties involve making health care entitlement decisions, including providing an opinion and advice concerning clinical matters to the multi-disciplinary team involved with injured workers. Furthermore, she said her aim is to achieve for the injured worker the best possible return to work result and best outcome for recovery and health outcomes for the injured worker.

In addition, she helps mitigate obstacles, calls service providers for clarifications, and advises the injured worker’s family doctor, chiropractor, therapist, and service providers of orthotics or prosthetics of her decision. In addition, she has worked in the unit for seriously injured workers for nine to ten years.

[ 68 ] Devera also said that Rehabilitation Support Workers used in cases of head injuries are retained to help the injured worker reintegrate back into the community and would coordinate therapy depending on the injured worker’s treatment goals and the services that the rehabilitation services company provides. [ 69 ] In regards to her involvement with the defendant, Devera said that she only became involved with the defendant’s file in the summer of 2009, in either June or July, and then was not involved in the defendant’s file after the beginning of January 2010.

She also said she had been involved with the neuropsychological reassessment of the defendant that was needed by the defendant’s case manager and for determining whether to extend the services of the Rehabilitation Support Worker. [ 70 ] For the neuropsychological reassessment, Devera said that the WSIB needed to know how the defendant was functioning because of the concern with the defendant’s head injury.

She also said that an annual assessment is usually recommended. [ 71 ] Furthermore, Devera said she was familiar with the defendant’s file and had reviewed the entirety of the file, especially the medical section. She also said she noted that the defendant needed quite a lot of personal care because the file indicated the defendant was quite disabled. Furthermore, she said she was not the defendant’s first nurse consultant.

In addition, she said she had reviewed the progress reports for the defendant and had called the defendant’s residence to find out how he was progressing and what had been going on and where the defendant was in relation to the goals set by his occupational therapist and physiotherapist from Credit Valley Rehabilitation Centre, after he had been discharged from there. Moreover, she said the defendant’s goals had been set in January of 2008 and that a year and a half had gone by since then.

She further said the defendant had been given physical exercises and tasks, cognitive exercises to work on his cognitive skills, and a goal to integrate and make him more independent in the community, which involved him learning to take public transit so he could be able to travel in the community.

She also said the plan involved the defendant’s Rehabilitation Support Worker picking up the defendant and teaching him how to go from his home to the Y.M.C.A., to the library, and to a shopping mall by public transit. [ 72 ] Moreover, on October 6, 2009, Devera said she had spoken to Rawle Bynoe, the Rehabilitation Support Worker for the defendant, and was told that Bynoe and the defendant would start travel training and trying public transit the next week, on Wednesday.

She also said she gave approval to extend the Rehabilitation Support Worker services provided by Bartimaeus Inc. for the sole goal of the travel training. [ 73 ] Devera also said she recalls speaking to the defendant by telephone on two occasions. However, she said it was also difficult to contact the defendant or speak to the defendant’s father because she could not leave messages for the defendant because the voice mail was full. She also said the defendant had called her asking for something, but she had referred him to his case manager to handle his request.

However, she said she did ask him about what had been happening. She also said the defendant could communicate well with her and that she had specifically asked him about his abilities, who cared for him, and how often he needed the Rehabilitation Support Worker. In addition, she said the defendant gave his number to her and had also told her he had moved. [ 74 ] For the second telephone conversation in which Devera spoke to the defendant, she said the defendant called her on January 26, 2010, and had asked for psychological treatment.

However, Devera said she had asked him who had recommended it, since it had to be recommended by a doctor and she had not received a recommendation from a doctor for this treatment. [ 75 ] In addition, Devera said she had not previously met the defendant in person. [ 76 ] Furthermore, Devera said that if the defendant is able to drive and shop then it is in total contrast to what she knows about the defendant, who she said lacked the ability to make decisions.

And, with regards to driving a motor vehicle, she said more cognitive abilities are required to drive and that the defendant did not have that cognitive ability. She also said the Rehabilitation Plan to train the defendant in using public transit was intended to give the defendant more independence.

She also said that the defendant would not have been given that goal by the occupational therapist of learning to take public transit if the defendant could already drive himself around because that goal would then be irrelevant. [ 77 ] Moreover, Devera said the defendant driving himself around was unexpected because a person would need more cognitive abilities to drive a motor vehicle than it would require learning to take public transit to get around. [ 78 ] In addition, Devera said that in her conversation with the defendant on October 5, 2009, the defendant did not inform her that he could transport himself around by driving, since they were talking about starting the goal of trying public transit for the next week.

Furthermore, she was called by the defendant’s Rehabilitation Support Worker on October 6, 2009, in which Devera was told that the defendant and the Rehabilitation Support Worker would start the travel training the next Wednesday.

(3) David Rosenberg, private investigator with King-Reid & Associates Inc. [ 79 ] David Rosenberg testified that he is employed with King-Reid & Associates Inc. as a licensed private investigator. He also said he has been employed with them for 11 years. He also said that he videotaped the defendant and his activities on October 1, 2, 3, 4, 5, 6, 7, 14, and 19, 2009, and that Scott Griffin, who is also employed with King-Reid & Associates Inc., had been the one who had videotaped the defendant and his activities on October 8 and 9, 2009.

Rosenberg also said he had prepared the written Investigation Report dated October 30, 2009 (Exhibit #4).

In addition, he said that the six DVD discs submitted as Exhibit #5 are copied from the unedited videotapes he and Griffin had taken on a digital camcorder and then downloaded onto a computer. [ 80 ] Furthermore, Rosenberg said that during his surveillance of the defendant he heard the defendant communicate with the salesperson at the Future Shop and said the defendant had been asking questions about the features of a flat screen television in an intelligent fashion, and in Rosenberg’s opinion, the defendant did not show any difficulties in communicating with the salesperson and had been conversing normally. [ 81 ] Rosenberg also said he observed and videotaped the defendant on October 1, 2009, doing the following activities: the defendant had driven by himself to his father’s house on Dwyer Drive in Brampton and then walked to the neighborhood mailbox to retrieve mail; the defendant had driven a motor vehicle by himself to the Brick Furniture Store and inside the store the defendant had conversed with the clerk and to someone on the telephone in the credit department at the Brick Furniture Store for about an half-an-hour without difficulty; the defendant had driven to the UPS store with his wife and parked in front of the UPS store illegally with the emergency flashers of the motor vehicle he was driving illuminated and then entered the UPS store by himself; the defendant had driven to a coin- operated laundromat with his wife and did laundry and then carried a large laundry hamper of laundry to the motor vehicle he was driving; the defendant drove by himself to two different banks and entered the banks; the defendant sat in the motor vehicle he was driving for about 18 minutes and was going through various documents; the defendant had driven to a paralegal office by himself in regards to his WSIB claim and entered the office. [ 82 ] In addition, Rosenberg said he observed and videotaped the defendant on October 2, 2009, doing the following activities: the defendant had driven by himself to the YMCA, had purposely done a exercise routine on a treadmill and weight machines at the YMCA, then had wiped down exercise machines or equipment after he finished using the machine or equipment, and had also used significant weights on the exercise machines, and had exercised vigorously. [ 83 ] Furthermore, Rosenberg said he observed and videotaped the defendant on October 3, 2009, doing the following activities: the defendant drove to the Brick Furniture Store accompanied by his wife, and then entered the store with his wife, and then they both were engaged in conversation with a salesperson about purchasing a living room sofa set; the defendant drove him and his wife to a Wal-Mart store where he shopped on his own picking up items in the store and placing them in the shopping cart and then had to rearrange items already packed in his motor vehicle in order to load more items he had just purchased at the Wal-Mart store into his vehicle; the defendant drove a motor vehicle accompanied with his wife on Highway 401 and on Highway 427. [ 84 ] In addition, Rosenberg said he observed and videotaped the defendant on October 5, 2009, doing the following activities: the defendant was picked up by his Rehabilitation Support Worker and the defendant was then driven to a shopping mall where they both walked through the mall together and then the defendant was dropped off at his residence on Clark Boulevard by his Rehabilitation Support Worker. [ 85 ] Moreover, Rosenberg said he observed and videotaped the defendant on October 7, 2009, doing the following activities: the defendant drove to the Future Shop by himself, entered the store, and then proceeded to look at numerous flat-screen televisions and then had a lengthy conversation with sales staff about the television’s features; the defendant purchased a 37-inch flat screen television and then he and the salesperson carried the large television box outside to the defendant’s vehicle; the defendant then drove to his residence and carried the large television box by himself from his vehicle and walked with it for about 40 feet before he entered his apartment building with it; the defendant then drove by himself to a No Frills Grocery Store and carried and loaded six large boxes of bottled water, one at a time from the shopping cart into his vehicle; the defendant drove by himself to a Costco store and carried and loaded packages of beverages into his vehicle. [ 86 ] In addition, Rosenberg said he observed and videotaped the defendant on October 14, 2009, doing the following activities: the defendant drove by himself to the YMCA and then went into the YMCA where he walked on a treadmill for 25 minutes.

[ 87 ] Furthermore, Rosenberg said he observed and videotaped the defendant on October 19, 2009, doing the following activities: the defendant’s Rehabilitation Support Worker picked up the defendant and drove the defendant to the library where the defendant walked into the library with his support worker and then walked out of the library; the Rehabilitation Support Worker then drove the defendant to the YMCA and while the Rehabilitation Support Worker read a newspaper or talked on his cellular telephone at the front desk of the YMCA, the defendant had been inside the gym using the treadmill unsupervised; and after the defendant finished his workout in the gym the Rehabilitation Support Worker drove the defendant back to his residence. [ 88 ] Rosenberg also said that he observed the defendant always driving the motor vehicle, even when his wife had accompanied him. (

L) The Regulatory Proceeding [ 89 ] After the Regulatory Services Division of the WSIB investigated the defendant’s circumstances, they charged the defendant with contravening s. 149(2) of the Workplace Safety and Insurance Act , 1997, S.O. 1997, c. 16, Sched. A ., for committing the offence of willfully failing to inform the WSIB of a material change in circumstances in connection with his entitlement to benefits within 10 days of such change occurring during the period of May 9, 2009 to March 26, 2010.

The information containing the defendant’s charge was sworn on March 30, 2010, and a summons was issued informing the defendant of the charge and commanding him to appear in court on June 1, 2010, to answer to the charge. On June 1, 2010, the defendant’s agent appeared, disclosure was provided to the defendant’s agent, and the matter was then adjourned to July 6, 2010. On July 6, 2010, the defendant appeared and the matter was then adjourned to August 3, 2010.

On August 3, 2010, the defendant's legal representative appeared and set the matter down for a judicial pre-trial conference to be held on October 12, 2010. On October 12, 2010, the defendant's legal representative appeared and the matter again was adjourned to November 9, 2010. On November 9, 2010, the defendant’s legal representative was removed as the legal representative of record and the matter was adjourned to December 7, 2010, to set the date for a trial on a with or without counsel basis.

On December 7, 2010, the defendant’s present legal counsel appeared and the matter was adjourned to January 4, 2011, for resolution discussions. On, January 4, 2011, the defendant’s counsel appeared and the matter was set down for a three-day trial to be held on September 14, 15 and 29, 2011. The matter was then adjourned to July 5, 2011, to confirm the trial dates. On July 5, 2011, the defendant’s counsel appeared and the trial dates were confirmed. [ 90 ] The trial of the defendant’s charge was held over two days: September 14 and September 15, 2011. The September 29, 2011, date was not required.

At the trial, three witnesses testified. They were all for the prosecution. The prosecution witnesses were:

(1) Valerie McMurdo, the case manager of the defendant’s benefit claim at the time the benefits were suspended;

(2) Emie Devera, the nurse consultant at the WSIB, who decided on health care entitlements for the defendant from June or July 2009 to the beginning of January 2010; (3) and David Rosenberg, the private investigator who conducted the majority of the surveillance and videotaping of the defendant and his activities between October 1 to October 19, 2009. [ 91 ] After submissions from both the prosecution and the defence were completed, judgment was reserved and the matter adjourned to December 6, 2011, for judgment to be rendered. 4.

APPLICABLE LAW [ 92 ] The defendant has been charged for committing an offence under s. 149(2) of the Workplace Safety and Insurance Act, 1997 , S.O. 1997, c. 16, Sched.

A, which provides that a person is guilty of an offence who willfully fails to inform the Workplace Safety and Insurance Board of a material change in circumstances in connection with their entitlement to benefits within 10 days after the change occurs: Same, material change in circumstances 149(2) A person who wilfully fails to inform the Board of a material change in circumstances in connection with his or her entitlement to benefits within 10 days after the change occurs is guilty of an offence.

[ 93 ] Furthermore, a person who receives benefits or is entitled to receive benefits under the Workplace Safety and Insurance Act, 1997 , is directed under s. 23(3) to notify the Workplace Safety and Insurance Board of a material change in circumstances in connection with their entitlement to benefits within 10 days of the change occurring [ emphasis is mine below ] : Continuing obligation to provide information 23

(1) A person receiving benefits under the insurance plan or who may be entitled to do so shall give the Board such information as the Board may require from time to time in connection with the person’s claim. Effect of non-compliance

(2) If the person fails to comply with subsection (1), the Board may reduce or suspend payments to him or her while the non- compliance continues. Notice of material change in circumstances

(3) A person receiving benefits under the insurance plan or who may be entitled to do so shall notify the Board of a material change in circumstances in connection with the entitlement within 10 days after the material change occurs . [ 94 ] The p urpose of the Workers Safety and Insurance Act, 1997 is set out in s. 1 of the Act: Purpose 1. The purpose of this Act is to accomplish the following in a financially responsible and accountable manner: 1. To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases. 2.

To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease. 3. To facilitate the re-entry into the labour market of workers and spouses of deceased workers. 4.

To provide compensation and other benefits to workers and to the survivors of deceased workers. [ 95 ] The limitation period in the Workplace Safety and Insurance Act, 1997 is contained in s. 157.1(1) of the Act, which provides that a prosecution for an offence under the Act shall not be commenced more than two years after the day on which the most recent act or omission upon which the prosecution is based comes to the knowledge of the Board, unless it is an offence under s. 149, then there is no limitation period [ emphasis is mine below ] : Restriction on prosecution

157.1(1) A prosecution for an offence under this Act shall

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