A former Yukoner is on the hook for upwards of $500,000 after the Workers’ Compensation Appeal Tribunal found he had exaggerated his disabilities and was fit to work.
“I don’t know whether we’ll get the full amount, but we’re certainly going to try,” said Valerie Royle, president of the Yukon Workers’ Compensation Health and Safety Board.
“This worker wasn’t entitled to this money, and we’re going to try to get it back. Otherwise, it’s just not fair to those who pay for the system and for those who are legitimately entitled.”
The unnamed man, now 41 and living Outside, was working as a surveyor’s assistant near Beaver Creek in August of 1994 when he reported that he fell down a steep gravel slope and injured his head, knee, hip and wrist.
He later faulted the head injury for causing crippling headaches, dizziness and memory problems. As a result, the worker said he had trouble concentrating on tasks and was unable to climb above the second step of a ladder.
But serious doubts were raised of these claims, after investigators with the compensation board found the man had published a photo-journal of a month-long tour of England and Scotland.
In it, the man describes driving on the wrong side of the road, climbing cliffs and scaling a 2.5-metre fence to get one photograph.
It also featured another photograph taken through the glass floor of the Spinnaker Tower, more than 30 metres above ground.
This incriminating evidence “made it a lot easier for us,” said Royle.
More evidence was dug up by the compensation board’s investigators, who spent several months spying on the man.
They observed the worker drive in heavy traffic at all hours. They followed him to Home Depot and watched him buy a table saw and other equipment. And they documented him conducting home renovations, casting further doubts as to whether he was truly unable to work.
The worker later admitted he was fit to lay tile and hardwood flooring, wire electrical boxes and switches, mud and tape drywall, and other tasks, although he was far slower than a professional would be.
The workers’ advocate condemned how the compensation board had sent investigators “to hide in the bushes and try to intimidate” the worker. Royle wouldn’t comment on specific investigation methods, other than to say “it was all done legally.”
The tribunal concluded that the worker “is capable of undertaking paid employment; he is not totally disabled.”
But the tribunal disagrees with the board’s accusations that the man committed fraud. Instead, the tribunal blames the board for bungling the case with several “egregious” errors.
The first big mistake was overpaying the man.
His wage-loss pay was miscalculated by the board, which used the man’s summer wages as a basis to calculate his annual salary, rather than taking a broader average of pre-injury income. The tribunal had “strong concerns” about this.
And the board should never have reinstated funding to the man in 2001, after he had spent four years holding a variety of jobs.
He worked for a sportswear company, a grocery store and a restaurant. Most notably, he spent nearly three years working as an assistant manager for a financial institution.
And, while the man told the adjudicator he didn’t work in 2000, Canada Revenue Agency records showed he had earned $15,216 that year. The tribunal suspects he was running a web design business at the time.
Then, in 2001, the worker asked that his claim be re-opened, reporting that he suffered from constant headaches, dizziness and other problems. He received a retroactive payment of $164,640.
The tribunal considers this to be a mistake. The board should have treated the man’s claims with more skepticism, considering how he had recently held a steady job for three years, the tribunal decision states.
Later, in 2004, the workers’ advocate pushed for the man to receive a permanent impairment award. But a neuropsychologist who assessed the man found few signs that the man was unable to work, and expressed concerns the worker was faking his injuries.
At this time, the board should have suspected something was amiss, said the tribunal. Instead, it waited until 2009 to launch an investigation.
But Royle defends the decision.
“We had conflicting medical evidence,” she said. One specialist saw the man as completely disabled, while another viewed him as fit to work.
“In this business, I like to give people the benefit of the doubt unless proven otherwise,” said Royle. “But when you’re defrauding the system, the gloves are off.”
Also, the board only hired its first investigator in 2007, and its second in late 2008.
Since that time, Royle estimates that the board has saved $6.5 million by exposing fraudulent claims. The unnamed man’s case itself would have cost far more, had he gone undetected. “He had 24 more years of potential benefits,” said Royle.
The tribunal decision, made on November 9, dismisses an appeal made by the man. The board accepted the tribunal’s findings on Tuesday. It remains to be seen how much money the board will recoup from the man. But it looks as if he will lose his house. The compensation board has a lien against it.
Whether the worker’s accident actually occurred is disputed by his employer. There were no witnesses, no marks on the gravel slope to indicate a fall and no visible injuries on the worker.
But the tribunal accepted some of the man’s disabilities as legitimate. It allowed him to keep his first few months of benefits, plus $10,352.40 awarded for partial vision loss that affects one-ninth of his left eye’s field of range.
The tribunal also accepted the man’s claims of suffering emotional distress. He reported that he felt impulsive, easily distracted and temper-prone, which he attributed to his head injury.
But, after considering all medical evidence, the tribunal concluded it was more likely that these symptoms are a product of attention deficit hyperactive disorder, which the man suffered as a child. This condition existed before any workplace injury, so the worker won’t be compensated.
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