The WSIB acknowledges that widespread fraud by injured workers is a myth. Although more than 200,000 injured workers file workers compensation claims every year, fewer than 20 injured workers are charged with offences relating to benefits and many of them are found not guilty.
Yet the Board and employers often look to covert surveillance and private investigators in today’s aggressive and adversarial environment when the goal is to reduce long-term claims. This use of surveillance feeds into negative stereotypes that undermine honest public discussion of the real problems facing Ontario’s workers’ compensation.
Targeting the most vulnerable
Rather than investigate where there is reasonable suspicion in an individual case, the Board has now adopted a practice of “blanket suspicion”. Injured worker files are marked as problematic with sufficient grounds for surveillance if they include what the Board considers indicators of potential fraud. Internal guidelines for this “red flag” model, obtained by IAVGO under a Freedom of Information request, reveal that these indicators include language barriers, psychological problems, chronic pain or prolonged recoveries!
Unjustified surveillance to deny benefits or intimidate adds to the harm caused by the original injury or illness in many ways:
- delays physical recovery – the fear of being watched makes injured workers avoid the rehabilitation activities their doctors recommend, such as going for walks, light shopping, gardening and other limited duties of daily life
- damages mental health – feeling spied on and the loss of privacy often results in isolation, loneliness, depression or added anxiety, that in turn impact physical well-being
- hurts interpersonal and social relationships with neighbours and co-workers – surveillance stigmatizes the injured worker by questioning the legitimacy of a work injury or claim
Prejudicial also at the Appeals Tribunal (WSIAT)
Surveillance evidence may have little probative value as the Tribunal itself has recognized in numerous decisions. But it can still have a significant prejudicial effect in appeals. Snippets from a person’s life can be misleading and, as a recent Canadian Bar Association article on video evidence shortcomings discusses, recordings can be manipulated to appear credible. This raises serious questions on how such evidence should be used and weighed?
Taking action – a legal challenge
In early 2015, the community made an important step forward in its fight back against the Board’s covert surveillance practices. Over 2014 a working group of community legal clinics, ONIWG and the OWA formed a strategy to challenge these practices of the Board as discriminatory against injured workers. They prepared a statement of fact for the Ontario Human Rights Commissioner who, following discussion with the WSIB, got their agreement to remove from their system all references to the discriminatory Red Flag list – and to prepare a guidance document for staff that “better reflects” a process for surveillance referrals that is in line with the Ontario Human Rights Code.
Read “Human Rights of Injured Workers and Covert Surveillance by WSIB”, a presentation to the OFL/ONIWG Conference June 2, 2015, on the legal challenge.
- IAVGO Community Legal Clinic. WSIB internal documents on surveillance (supplied through FOI request)
- Wolfson, Carmelle. 2014, Sep. 1. “Big brother’s watching: Ontario’s workers’ compensation board is increasingly using covert surveillance to target injured workers with costly claims, legal experts say.” OHS Canada
- Injured Workers’ Consultants. 2013, Nov. 28. “Submission on WSIAT Draft Practice Direction – Surveillance Evidence.” Toronto: IWC
- Lippel, Katherine. 2003, Jan. 24. “Legal and social issues raised by the private policing of injured workers.” Montréal: l’Université du Québec à Montréal