(Guest post by Maryth Yachnin and Ivana Petricone, IAVGO Community Legal Clinic)
Through public concern, the work of the Human Rights Legal Challenges Working Group and the intervention of the Ontario Human Rights Commission, the WSIB was convinced to revoke its previous internal surveillance guidelines and remove the discriminatory elements. The WSIB has created new guidelines for the use of covert surveillance of injured workers.
The new internal surveillance guidelines, which are not made publicly available by the WSIB, are available at www.iavgo.org.
The new internal guidelines are seemingly an improvement over the previous guidelines, which listed “red flags” for possible fraud/wrong-doing that disproportionately affected individuals on the basis of Human Rights Code-protected grounds. The “red flags” included language barriers, a diagnosis of chronic pain, psychological problems, and frequent change of address or erratic employment history.
The new guidelines do not repeat the same enumerated “red flags” for possible fraud. However, the new guidelines remain problematic. For example, they advise decision-makers that there may be misleading statements where a worker claims total disability but was “able to travel out of the province or country”. This provision discriminates against many injured workers who are immigrants and refugees, and who are more likely to need to travel out of the province or country. A worker whose parent is dying, for example, may need to travel despite serious disability that would prevent them from working.
The new guideline document also states that there may be misrepresentation where WSIB staff observe “grossly exaggerated symptoms not supported by medical documentation” or “excessive pain-focussed behaviour”. This is very troubling because “exaggerated symptoms” beyond what would be expected from the injury is a hallmark of chronic pain disability. Suggesting that such symptoms indicate deception perpetuates the type of stereotyping rejected by the workers’ compensation system in the 1987 decision allowing chronic pain disabilities, Decision 915.
The Human Rights Working Group will reconvene in April to consider the new internal guidelines and decide if they warrant further discussion or action to ensure that they are not used to continue discriminatory treatment of injured workers.