The Yukon Workers’ Compensation Health and Safety Board has been ordered to reinstate the benefits of an injured worker it cut off over three years ago.
It’s the second time the board has been told to do so.
Last June, the Workers’ Compensation Appeal Tribunal sided with the injured worker, Mike Schwartz, and told the board that it would have to pay him the $72,000 in benefits it has withheld for almost three years. But instead of paying up, the board asked the appeals committee to rehear the case, arguing that it did not provide adequate reasons for its ruling, or consider all the evidence from the investigation.
The board also wanted a new committee to hear the case, claiming that the previous one was biased toward investigators.
In its original decision the committee lambasted the investigator, characterizing his report as “rife with conjecture, personal opinions and incorrect reporting.”
While the committee admitted it could have used less inflammatory language, it denied there was any bias and stood by its characterization of the investigation report.
“We find the investigators did not provide the correct facts in some instances in their report,” the committee wrote in its decision.
Not only would having a new committee hear the case cause significant delays, but because the board inadvertently destroyed all the tapes of the original proceedings Schwartz would have had to recall all his witnesses at his own expense.
For those reasons the same committee was tasked with reviewing the case.
In a decision last week, the committee upheld its original decision and ordered the board to repay the benefits it cut off in 2009.
Schwartz couldn’t be reached for comment.
He now lives on a farm in rural Alberta.
A former hunting guide, Schwartz was injured in 1995 while guiding a horseback hunting trip in the Kluane region.
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, moving to a farm in Alberta.
“I pretty much turned into a hermit,” Schwartz said in a previous interview. “I prefer dealing with horses to people.”
In 2009 he got a letter from the WCB informing him that his benefits were being stopped. It accused him of lying about the extent of his injury and demanded that he pay back the benefits he had received for the last eight years.
Unbeknownst to him, investigators had been videotaping him from across the road.
Pretending to be property hunters buying recreational property, investigators had also visited him at home.
Investigators concluded that Schwartz had recovered from his injuries after observing him working around the farm.
Based on that report, the WCB stopped Schwartz’s benefits. But it never had a medical assessment done to back up the conclusions of the investigation report.
“Both directors of claimant services relied heavily, and we find, almost exclusively on the investigation report when rendering their decision,” stated the appeals committee.
The committee gave very little weight to that report.
“In this instance we prefer the worker’s testimony to that of the investigator’s reporting,” it stated. “He testified in an honest and forthright and sincere manner.”
In a bizarre twist, Schwartz later caught the WCB’s investigators spying on him when he travelled 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.
The committee ultimately concluded that Schwartz did not lie about the extent of his injuries or provide false or misleading information to the board and that he still suffers loss of earnings due to those injuries.
The WCB was ordered to pay back all the benefits it has been withholding and any funds it had seized.
Contact Josh Kerr at
joshk@yukon-news.com