Compensation clawback reviewed

The Yukon's Workers' Compensation Health and Safety Board claims they were duped and wants a former claimant to pay back more than $600,000.

The Yukon’s Workers’ Compensation Health and Safety Board claims they were duped and wants a former claimant to pay back more than $600,000.

But, following a recent ruling by Yukon Supreme Court Justice Ron Veale, a new hearing will first be held on the matter.

The issue dates back to 1994, when Ashley Byblow, then in his early 40s, was working as a surveyor’s assistant in the territory. He slid down a steep gravel hill, injuring his head, jaw, left knee, hip and wrist.

Byblow received workers’ compensation until the end of that year. Afterwards, from 1996 to 1999, he worked as an assistant manager with Trans Canada Credit Corporation.

In June 2001 a neurosurgical consultant for the head injury unit of the British Columbia Workers’ Compensation Board reviewed the file and decided that Byblow “sustained a moderately severe brain injury” from the 1994 accident, Veale’s decision states.

The workers’ compensation board re-opened the claim, paid Byblow retroactive earnings and restarted his monthly payments.

In November 2003, the board further decided that Byblow was unemployable and gave him more cash.

But in 2004, the workers’ advocate asked for a review of the file to see if Byblow was entitled to even more money. A neuropsychologist concluded Byblow “acquired a mild level of cognitive and emotional dysfunction as a result of the compensable accident of 1994, (but) his impairment was neither significant, nor even moderate.”

The doctor also said Byblow “was intentionally attempting to appear more impaired than he truly is,” Veale’s decision states.

In May 2009, an investigations team snooped around Byblow’s new home in Westbank, B.C. They reported that he gave false and misleading information to the board and health-care staff.

Workers’ compensation stopped his payments and decided they overpaid him $620,768.18. Byblow appealed and the issue was sent to an independent tribunal.

In November 2010, the tribunal decided that Byblow wasn’t guilty of fraud, but that the board made mistakes.

After Byblow proved he was capable of holding a full-time job, from 1996 to 1999, he should not have been repaid benefits or put back on the board’s monthly payments, the tribunal’s decision states.

The tribunal noted that while undiagnosed, Byblow has suffered from ADHD since childhood but that it is not a compensable, pre-existing condition and was not caused by the 1994 accident.

What was caused by the accident was a permanent loss of vision in Byblow’s “lower left quadrant,” the tribunal found.

The tribunal concluded that some of the money the board doled out is recoverable. But Veale criticized the tribunal for not saying what precisely that means, leaving hanging the question: If Byblow wasn’t found guilty of fraud, is he supposed to pay back the money?

As well, the tribunal received more information after their hearing with Byblow, but it never gave him a chance to respond to it, Veale wrote.

That information came from the Canada Revenue Agency. It showed that Byblow held a business licence for a “design studio” in 2000 and claimed an income of more than $15,000. But Byblow reportedly told the board he did not work in 2000.

With all of this, Veale has ordered that the tribunal’s decision be quashed and a new hearing be held.

His decision did not include a date for that hearing to take place.

Contact Roxanne Stasyszyn at

roxannes@yukon-news.com

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