Discrepancy on compensation claim a mistake: Tribunal

Employee's original report said injury occurred at a time he wasn't working
|Canadian Employment Law Today|Last Updated: 01/08/2009

A New Brunswick worker has had his workers’ compensation benefits restored after they were taken away when the province’s Workplace Heath, Safety and Compensation Commission (WHSCC) discovered discrepancies in his report.

Keith Rowe was a city worker in Saint John, N.B., in January 2005 when he injured his back while changing a blade on a snowplow with a co-worker. On Jan. 28, 2005, he submitted a report to the WHSCC claiming he suffered a work-related injury on Jan. 20 at 4 p.m. On March 23, 2005, he submitted a another report that said the injury occurred on Jan. 21. His claim was accepted in April and he received compensation for the lost wages from his medical absence.

However, in March 2006 the city requested the WHSCC reopen Rowe’s claim because it had new information. Records showed Rowe was not working at the reported time his injury occurred as he worked a shift from 3 a.m. to 10 a.m. on Jan. 21. Rowe explained he had made a mistake in the report and the injury actually occurred at 4 a.m. The WHSCC didn’t accept Rowe’s explanation, saying the evidence Rowe wasn’t working at the time of the injury was “very compelling.” The WHSCC overturned the benefits award and ordered Rowe to repay the benefits he had received to that point, which totalled $10,125,69.

At the appeal, the city gave evidence Rowe was a problem employee who was unreliable. It said he had cashed a cheque from the WHSCC without telling the city, though it was payable jointly to himself and the city. Though Rowe admitted to what he did and offered to pay it back, he was disciplined and fired.

The appeals tribunal found the city’s evidence wasn’t relevant as it was about Rowe’s character and not the “narrow issue” of whether he was injured at work. The circumstances of his discipiline and firing took place well after his compensation. Rowe also had a signed letter from his co-worker saying Rowe was working at 4 a.m.

The appeals tribunal found it was likely Rowe was injured at 4 a.m. during his shift and there was insufficient evidence to prove otherwise. His compensation benefits were reinstated. See Saint John (City) v. New Brunswick (Workplace Health, Safety & Compensation Commission), 2008 CarswellNB 557 (N.B. C.A.).