The Yukon Workers’ Compensation Health and Safety Board has lost some momentum in its fight to recover nearly $600,000 it says was fraudulently claimed.
Justice Leigh Gower has sent the file back to the Workers’ Compensation Appeals Tribunal with an “express direction to consider the unusual circumstances of the delay in the investigation and in the decision to declare the overpayment, and the impact that should have on any further decision to recover the overpayment at all, or the extent to which there should be recovery.”
The case, which has a lengthy history, dates back to 1994.
Ashley Byblow was working as a surveyor’s assistant in the territory at the time, when he slid down a gravel embankment, approximately 27 metres high, injuring his head, jaw, left knee, hip and wrist.
On September 30, 1994, the board accepted Byblow’s claim for benefits as a result of the injury. In December that year, it determined he was fit to return to work.
Byblow returned to work for several years, putting in three years at TransCanada Credit.
In November 1999, he requested his benefits claim be reopened on the basis that he was experiencing ongoing symptoms. On January 1, 1995, he was awarded nearly $165,000 in retroactive benefits.
On November 20, 2003, the board deemed Byblow unemployable as a result of injury and was awarded a wage loss supplement of nearly $45,000 annually. In January 2004, Byblow applied to the board to increase his permanent partial impairment awareness level, which would increase his benefits.
Byblow was then reassessed by Touchstone Rehabilitation Services, who concluded that Byblow was intentionally attempting to appear more impaired than he truly was, according to the court decision. A second doctor, the board’s medical consultant, Dr. Allon Reddoch, determined there was strong evidence to support this opinion.
Despite the findings of the doctors, Byblow continued to receive his benefits for five years.
In 2012, the tribunal found Byblow had defrauded the board and been overpaid by nearly $600,000.
“For reasons which remain unclear, the board took no action in response to the opinions of Dr. Stoddard and its own medical consultant, Dr. Reddoch,” Gower wrote.
“This was a period of five years in which Mr. Byblow received benefits with no indication that there were any concerns about his eligibility to receive them. In my view, the board’s inaction in this regard was manifestly unfair.”
The decision was rendered on July 4. Byblow has 30 days from that date to file to the court of appeal.
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