Bob Doiron argues WCB 'cherry picked' evidence to cut off his benefits

The lawyer for a Charlottetown man whose workers compensation benefits were terminated says that decision was based on "cherry picked" evidence, ignoring evidence from medical doctors who had treated him.

Bob Doiron is a city councillor who also used to work full-time with UPEI Campus Security until he fell while on the job on Oct. 29, 2015.

Tuesday, Doiron had his day in court as the P.E.I. Supreme Court Appeal Division reviewed a decision by the Workers Compensation Board Appeals Tribunal to cut off his benefits. 

The Workers Compensation Board (WCB) had granted Doiron benefits due to a hip injury, sustained in October 2015, but was working with him on a plan to gradually return to full-time work with modified duties.

The Board was overly anxious to get him back to work.— Doug Drysdale

Doiron's lawyer Doug Drysdale told the court Tuesday Doiron said he was in too much pain to return to work full-time and felt he was pressured to work more hours than he was able.

'As much as the pain allowed'

The WCB terminated his benefits in July 2016, finding that Doiron wasn't co-operating with the plan to ease back to work, which had been approved by a physiotherapist and the board's medical advisor.

That decision was upheld by a Workers Compensation Appeals Tribunal on Oct.16, 2017. And the tribunal went further — accusing Doiron of abusing the program by misrepresenting his condition.

The tribunal pointed to Doiron's hours attending city council meetings and videotaped surveillance that showed him walking his dogs, doing yard work and going to the gym. The tribunal said that showed Doiron was able to do more than he said he could.

Drysdale told a panel of Appeal Court judges Tuesday these are all moderate activities — and Doiron had never said he wasn't able to work, only that he couldn't return to work full-time.

The lawyer also told the court the tribunal never asked Doiron's doctors for their opinion about the relevance of the videotaped surveillance in considering what work he was able to do at UPEI.

"The Board was overly anxious to get him back to work and not willing to consider medical evidence that he wasn't ready," Drysdale told the judges who are reviewing the decision to terminate benefits.

"Every doctor who examined him felt he should only work as much as the pain allowed," said Drysdale.

WCB assesses readiness, court hears

He suggested to the court that Workers Compensation didn't want to pay for expedited surgery recommended to repair Doiron's injury, estimated to cost $15,000, according to court documents.

Drysdale said the WCB seemed determined to force Doiron into an ease-back program before he was able to, rather than wait until after the surgery that would have repaired his injury.

Drysdale is asking the courts to reinstate Doiron's benefits.

The lawyer for the Workers Compensation Board, Jonathan Coady, told the court WCB staff was working to see Doiron return to work on modified duties.

Coady said a fitness-to-work assessment conducted by a physiotherapist observed him sitting for 45 minutes without pain, and did other physical tests, concluding Doiron was able to return to full-time desk work.

The Workers Compensation Act puts the WCB, not the worker, in charge of assessing whether an injured worker is ready to return to work and in what role, said Coady.

Doiron is still on a waiting list for the surgery.

The appeal court is also reviewing the time it took the Workers Compensation Appeal Tribunal to make its decision. According to the Act, it has 90 days. The lawyer for the tribunal told the court that time frame is in the legislation, but it is not mandatory.

The appeal judges expressed concern about delays for injured workers, pointing to a recent case where there was a 17- month wait.

The appeal court will have a decision on this case at a later date.

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