WCB investigators rebuked

Mike Schwartz knows what it's like to be spied on. The Yukon Workers' Compensation Health and Safety Board sent undercover investigators to his home in rural Alberta, posing as out-of-towners looking for recreational property.

Mike Schwartz knows what it’s like to be spied on.

The Yukon Workers’ Compensation Health and Safety Board sent undercover investigators to his home in rural Alberta, posing as out-of-towners looking for recreational property. He welcomed them in, not knowing that they were snooping for evidence to support their suspicion that he was faking his disability.

The board later cut Schwartz’s payments and ordered him to repay $72,000.

But, after almost three years of fighting, the board was ordered last month to reinstate Schwartz’s benefits.

It’s a big embarrassment for the board, which likes to boast about the work it does to bust fraudsters. But this time it was the board, rather than Schwartz, that was breaking the rules, according to a decision last month by an appeals tribunal.

“This has just been a nasty nightmare,” said Schwartz from his home, two and a half hours north of Edmonton.

Schwartz crippled his hand while guiding a horseback hunting trip in the Kluane region in 1995. His client had bagged a ram and they were returning to camp when Schwartz’s pack horse “blew up.”

When Schwartz knelt down to pick up a pack the horse kicked him, crushing his hand.

His right wrist was fractured so badly it needed a metal plate to shore it up. One finger was so seriously dislocated that some doctors recommended it be amputated.

They saved the finger, but after undergoing several surgeries, his hand likely won’t ever return to normal.

In fact, its grip strength and range of motion has gotten significantly worse, according to an evaluation by an occupational therapist last year.

In 2001, the WCB deemed Schwartz unable to work as a hunting guide and gave him a monthly wage-loss supplement. He thought that was the end of it, and he went on with his life.

Unable to return to guiding, he bought land in Alberta and relocated there.

The injury had taken a psychological toll. Schwartz turned inward.

“I pretty much turned into a hermit,” he said. “I prefer dealing with horses to people.”

For several years he lived a quiet life. But that serenity was shattered when he got a letter from the WCB in 2009.

The board accused him of lying about the extent of his injury. It stopped paying benefits, and it demanded that Schwartz pay back what he had already received over eight years.

“I thought they were there to help me. But wow, I got a surprise,” said Schwartz.

Unbeknown to him, investigators had videotaped him from across the road. And when they knocked on his door, saying they were looking to buy recreational property, he let them inside for a chat.

The investigators later reported that Schwartz bragged about hunting, and that they saw a long rifle leaning in the corner.

But Schwartz said he hasn’t hunted since the accident in 1995 – something easily checked with the Alberta Fish and Wildlife Division.

As for the gun, it turned out to be an air rifle Schwartz uses to scare coyotes away from his horses.

In a bizarre twist, Schwartz later caught the WCB’s investigators spying on him when he traveled to Whitehorse to appeal the board’s decision.

When questioned about it, the compensation board denied they did it. But, after filing an access-to-information request, Schwartz found proof that the board was lying: he obtained 10 photos taken in 2011 of him in the Whitehorse Wal-Mart parking lot.

Two weeks ago, the appeal tribunal lambasted the WCB for its handling of the case.

“There is no reason for the board to undertake surveillance two years after they have closed his claim,” states the decision.

In its 32-page decision, the tribunal concluded that the investigator overstepped his authority and wrote a report “rife with conjecture, personal opinions and incorrect reporting.”

“We do not give any weight to the investigator’s statements,” states the report. “The appeal committee finds the investigator did not follow the board’s policy and conduct himself in a professional manner.”

The board has been ordered to pay Schwartz back, with interest, for the three years they withheld his benefits, and to assume the costs he incurred for any medical and psychological reporting.

Schwartz isn’t celebrating his victory.

“The process just absolutely eats you up,” he said. “Losing my career was a big adjustment.

“That was bad enough in itself, but dealing with the conduct of the board … I consider it to be negligent.”

But he’s happy that his case exposed the board’s questionable conduct. He says he’s not the only one to be treated this way.

“People are afraid to come forward,” he said.

The board has the option of appealing the tribunal’s decision but is not commenting on the case until after its board of directors meets next month, said spokesperson Richard Mostyn.

Schwartz still doesn’t know what prompted the investigation of his claim in the first place.

“There’s no explanation for that at all,” he said. “I wasn’t made aware or educated or told that these guys could come up and hide in my bushes.”

While it has been a long and arduous fight, Schwartz considers himself lucky.

“What bothers me is that they’re beating up on injured people, vulnerable people,” he said. “If I had a family and a mortgage to worry about, there is no way I could have brought this forward.”

Contact Josh Kerr at

joshk@yukon-news.com

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