Big Brother’s Watching

Ontario’s workers’ compensation board is increasingly using covert surveillance to target injured workers with costly claims, legal experts say.

While the Workplace Safety and Insurance Board (WSIB) has always used private investigators to look into anonymous tips about potentially fraudulent claims, Maryth Yachnin, staff lawyer at the Industrial Accident Victims’ Group of Ontario (IAVGO), says the WSIB has recently started spying on injured workers, even when there is no reasonable suspicion that the person is misrepresenting a claim.

“In the past, it seems they did more targeted surveillance when they had some specific reason to suspect fraud,” Yachnin says. Now, they use a red-flag model, in which case handlers are asked to identify signs indicative of fraud or misconduct.

Internal WSIB documents, obtained by the IAVGO through a Freedom of Information request, show that these red flags refer to things that include psychological problems, frequent changes of address, prolonged healing, chronic pain and anti-social behaviour — even language barriers.

“I was surprised that the board would identify those markers as suggestive of fraud,” Yachnin says. “I just didn’t see the connection to misconduct or fraud, but what I do see a connection to is more expensive claims.”

Other red flags listed in the document include erratic employment history, accidents that occur shortly after being hired, travelling unreasonable distances to see a doctor, first-time medical treatment from a chiropractor and pre-existing medical problems.

In an email that the WSIB sent to its staff in June 2011, director of compliance Bob Thomas confirms that increased surveillance is taking place. “Now that we are conducting more surveillance related to misrepresentation of level of disability where we don’t have an actual allegation, for example, call record, there have been lots of questions from compliance specialists around what constitutes sufficient grounds to warrant surveillance,” he writes.

Yachnin relates the experience of her client, Jennifer Williams, who went on workers’ compensation after physical and psychological injuries prevented her from working as a personal support worker. An investigator secretly videotaped Williams shopping at Honest Ed’s, and the board later determined that she was fit to work as a customer-service representative. After alleging that Williams was uncooperative during re-training, the board concluded that she could earn $26 an hour in customer service and cut off her benefits.

John Bartolomeo, lawyer at Toronto Workers’ Health and Safety Legal Clinic, affirms that the WSIB is taking a more aggressive approach than in the past, when “an anonymous tip or something was usually called in to start the process and even then, the board sometimes didn’t bother.”

Bartolomeo says he has defended several clients, mostly those with psychological injuries, in relation to surveillance around allegations of fraud. In one case, a client who became reclusive following a workplace incident was advised by his therapist to “get out more.” Then surveillance began, and Bartolomeo claims that the board accused the client of lying since he was no longer housebound. “It turned out the only reason he could do those things is because he was urged to do so to make life changes by the therapist.”

REASONABLE GROUNDS

Brian Sartorelli, president and chief executive officer of Investigative Risk Management — a Barrie, Ontario-based firm that conducts surveillance on WSIB claimants for employers — says pursuing an investigation without reasonable evidence is frowned upon. “If you are unionized, that is going to be thrown out. It is going to hold no weight whatsoever.”

Furthermore, investigators should refrain from misrepresenting themselves or hacking into accounts to access social-media profiles, infringing on privacy by videotaping the subject in private settings and entrapping them, Sartorelli says. “The investigation has to be absolutely above board.”

Sartorelli suggests that surveillance is becoming more common for both the WSIB and corporations, especially in cases involving third-party reports of claimants doing activities that do not reflect their injuries.

Tonya Johnson, senior public-affairs consultant for the WSIB, maintains that the board has not changed its practices. “There is no one factor that would result in a decision to undertake surveillance. There have been no changes to our surveillance policy, selection criteria or approvals process,” she says. “Like any large insurance system, the WSIB does need to investigate potential compliance issues brought to our attention, involving employers, workers or providers. These represent a small handful of claims, approximately 0.075 per cent of total claims received annually.”

One of the internal WSIB documents obtained by the IAVGO suggested that WSIB staff “consider how the anticipated activity will inform benefit-entitlement decisions,” and that there “must be a strong likelihood surveillance evidence will have a demonstrable impact on benefit entitlement.”

The WSIB receives more than 200,000 new claims and pays out $2.6 billion annually. “Our services are focused on minimizing the impact of workplace injuries through helping injured workers recover and return to work,” Johnson says. “In fact, 92 per cent of all injured workers are back to work at no loss in wages within one year of their injury.”

Carmelle Wolfson is assistant editor of OHS CANADA.

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