The Yukon Workers' Compensation Health and Safety Board has been ordered to pay not only the benefits it had terminated for a man who has been on compensation since 2001, but all the medical and psychological costs he's been paying since he lost his benefits.

The workers' compensation appeal tribunal handed down the 32-page ruling the board should not have been conducting surveillance on the man who was injured in 1995, on Tuesday.

"We have concerns with the worker being under surveillance when his claim has been closed,” the document states.

"There is no reason for the board to undertake surveillance two years after they have closed his claim.

"When questioned, the board denied doing so. However, through ATIPP (the territory's access to information process), the worker obtained 10 photographs of him in 2011 in the Yukon Walmart parking lot.”

The injury goes back more than 16 years when the man, now 54, was working as a hunting guide and was kicked in the hand by a horse. His name was not released.

"From the date of injury to 2001, he underwent numerous medical treatments, including several surgical interventions,” states the decision.

"In October of 2001, the worker was deemed and provided with a monthly wage loss supplement.”

In April 2009, an investigator with the board began doing video surveillance on the worker, with the benefits being cut off in June of that year.

The investigator was overstepping his authority, states the decision, citing policy governing the board.

"We agree with the workers' advocate that the investigator is not medically trained and does not have the qualifications to make medical decisions on claims,” it's noted.

"We do not give any weight to the investigator's statements. The appeal committee finds the investigator did not follow the board's policy and conduct himself in a professional manner. His report is rife with conjecture, personal opinions and incorrect reporting.”

The appeal tribunal stated no stock can be given to statements by neighbours as it is not up to them to decide if he is disabled; other witnesses used in the investigation weren't at the hearing and couldn't be questioned.

"The worker has testified that because the investigator has questioned his neighbours, his standing in his community has diminished,” the decision reads.

Similarly, the tribunal gave no weight to the video surveillance, stating it offers no proof the worker was capable of going back to work, specifically in his former occupation as a guide.

"There is no way to determine the weight of objects the worker is carrying or working with, i.e., the grooming brush, his boots, chaps. We do not know whether the worker took medication before or after these activities or whether he had to rest in order to recover from these activities.

"The video does not provide proof the worker could sustain regular, daily employment. The investigator notes the worker is ‘walking briskly.' We question what this has to do with an injury to his hand/wrist.”

The worker has two horses he was seen tending to and saddling. However, it was noted he has a stool to stand on when saddling, and the saddle, weighing about 30 lbs., can be put on the horse with one or both hands, which he does once or twice a day.

To mount a horse, he walks it to an elevated area in the lane.

"From our review of the video surveillance, including the worker's testimony, the worker's horses are well-mannered and easy to lead, especially if they are haltered,” the decision states.

"Once the horses are haltered, what appears to be little effort on the worker's behalf is needed to lead them.”

The tribunal did take into account the testimony of the worker's occupational therapist, who compared how he currently functions to results from 1998. She concluded there has been no improvement.

"Based on the results of the testing, she found no indication the worker would be physically able to tolerate working as a guide,” it's noted.

The tribunal also took issue with the investigator assigning the date of Jan. 1, 2005 as to when he was capable of returning to work.

"We believe this date was chosen as it was around the time the worker moved to northern Alberta (the fall of 2004) and was occupying the property he later purchased,” the decision reads.

"The appeal committee has concerns with arbitrarily picking a date to terminate the worker's benefits when no medical reporting or functional abilities testing has been undertaken to prove he is functionally capable of returning to his previous occupation.”

When the board was provided with medical reporting from qualified medical professionals, it continues, it chose to ignore those findings and rely solely on the investigation.

Additionally, the investigation set off "a chain of events” which saw the worker suffer financial difficulties and spend his money defending himself.

"We find the worker did not ‘knowingly provide the board with false or misleading information,'” states the decision.

"As directed, he provided the board with annual income tax statements. Other than that, there was no contact. The worker was neither aware nor made aware as noted in Policy RE-03 that he needed to provide any other information, especially considering his circumstances had not changed.”

In part because of the "actions of the board” and directly because of the injury, the worker has developed clinical depression and continues to suffer anxiety and stress.

The worker asked the tribunal to find in his favour and provide him with a settlement and severance of his relationship with the board. The tribunal, however, noted that's not within its jurisdiction.

"The board administrates compensation claims. In his best interests and in order to sever the relationship, we suggest he take this concern to the board.”

Acting within its jurisdiction, the tribunal ruled that:

• the worker is entitled to wage loss benefits retroactively from 2009 when his benefits were terminated;

• the board will assume costs for all medical and psychological reporting from the time the benefits were terminated, though the worker must provide original receipts; and

• the worker is entitled to any applicable interest on the compensation.