WCB overhaul called for

Thousands of contentious claims

The Workers' Compensation Board has lost another round in its longstanding fight to deny benefits to a former WCB employee, one more reason why it needs to be reviewed and overhauled, say critics.

And according to a panel of appeals judges, the agency's appeals commission not only had no legitimate argument for cutting off Thomas Shuchuk's benefits, it actually used legislation designed to make benefits more available as one excuse for why Shuchuk should be cut off. The court has ordered the case back to the commission for another benefits review.

The former city man suffered a head injury in 1992 that the WCB initially agreed caused ongoing psychiatric and psychological difficulties. They fired him a year later while he was on medical leave, and attributed it to restructuring. Three years after that, in 1996, the WCB decided Shuchuk was conning the agency and cut him off, accusing him of fraud and saying the continuing psychological difficulties were not plausible.

Three years later, in 1999, the WCB appeals commission ruled Shuchuk had suffered a mild brain injury and should have his benefits reinstated.

But it refused to cover his medical bills for the period during which he was cut off, leading to a dispute over further medical assessment, and he was cut off again, only to have the benefits reinstated once more just months later.

Arbitrarily, according to the court rulings, the WCB then cut him off again in 2001 and said he was no longer entitled to benefits for any period after 1996. It suggested his problems were an emotional reaction to his accident, and not due to the head injury.

Big mistake, according to a Court of Queen's bench judicial review, followed by last month's supporting decision by the Court of Appeal.

"The Commission's analysis is unreasonable because it limited coverage by relying on factors that the policy requires be used to extend coverage. Limitation of coverage by relying on factors that the policy suggests be used to extend coverage is clearly unreasonable, and the commission acted unreasonably when it included Shuchuk's emotional reaction to the treatment process as one of the factors that had overtaken the accident," wrote Justice Keith Ritter. "In fact, on any standard, the Commission erred."

The agency won't comment on Shuchuk specifically. But it did say that "compassion and fairness are integral parts of every decision we make," according to spokesman Dayna Therien. "However, entitlement decisions also have to be grounded in the facts of each case, in our policy and in the status of the Workers' Compensation Act."

The commission was obligated to appeal the earlier judicial review finding because "we had an obligation to clarify the decision and jurisdiction of the judicial review judge and to ensure accurate and consistent application of policy and legislation."

The decision is just the latest in decades of reasons why the WCB needs to be fully reviewed and overhauled, said NDP critic Ray Martin, including the government's commitment to - then flip-flop on - reviewing thousands of contentious claims dating back to the mid-1980s.