Are Workers on Workers’ Comp Guilty of Not Reporting Health Improvements?
Under workers’ comp law (Sec. 149(2)) a person who “wilfully fails” to inform the WSIB of a material change of circumstances in connection with their entitlement to benefits can be fined up to $25K and/or jailed for 6 months. What exactly does “willfully fails” mean—or, in legal terms, what is the mens rea, or mental state, required to cross the “willfully” boundary? A new Court of Appeal ruling tying together 3 separate cases addresses this crucial question:
|Situation||Lower Court Rulings||High Court Ruling|
|Surveillance cameras show a worker getting full loss of earnings for permanent impairment & incapacity to work driving, carrying groceries and doing other physical activities||Trial: Didn’t violate “willfully fails” rule. Worker didn’t speak English nor understand the rule. Navigating WSIB website to figure out what “material change” means is hard enough for a full English speaker without injuries
Appeal: Acquittal overturned & new trial ordered
|Not guilty. Crown didn’t prove worker acted with the mens rea required|
|Surveillance cameras show a worker getting full loss of earnings & personal care allowance for an assistant for head/brain injuries driving and doing other physical activities independently||Trial: Worker violated “willfully fails” rule. Since he wasn’t in an “unconscious or dissociative state,” his omission to notify WSIB could be interpreted as willful
Appeal: Conviction upheld as reasonable
|Conviction set aside & new trial ordered to determine if trial court was right in interpreting omission as willful act|
|Surveillance cameras show a worker getting benefits for a debilitating chronic pain driving, laying bricks & shingling his roof||Trial: Guilty. The stuff worker was doing was so far beyond his reported capabilities that he just had to know he had improved and should have reported it to WSIB
Appeal: Conviction upheld
|Conviction set aside & new trial ordered. Neither court addressed whether the worker had the required mens rea|
[Workplace Safety and Insurance Board v. Curtis, 2018 ONCA 441 (CanLII), May 10, 2018].