Surveillance is a tool increasingly used against injured workers in order to collect “evidence” (often of dubious quality) to deny a benefit or to intimidate.
Stopping fraud – by employer, Workers’ Compensation Board, service provider or injured worker – is in everyone’s interest. However the use of private investigators by the Compensation Board and employers for unjustified surveillance or fishing expeditions harms injured workers and their families by:
- preventing physical recovery – the fear of being watched makes injured workers avoid the very activities their doctors recommend, such as going for walks, light shopping or gardening and other limited duties of daily life
- severely affecting mental health – feeling spied upon leads to isolation, loneliness, additional stress or depression
- hurting social relationships – the presence of investigators and their questioning of neighbours and colleagues creates unfounded suspicion about the injured worker’s honesty and legitimacy of an injury claim
- undermining an honest public discussion about current problems in the workers’ compensation system. In perpetuating a negative stereotype and shifting blame onto the injured worker, it diverts attention away from questionable Board and employer policies and practices
At the recent Bancroft Institute Research to Action workshop (April 2014 ) Maryth Yachnin of IAVGO presented findings from WSIB documents obtained under a Freedom of Information request. These documents show that, despite declaring it is a myth that claims fraud is widespread [The Facts about Injured Worker Stigma, WSIB, 2010], Ontario’s Board has changed when and why it conducts covert surveillance.
And how should this surveillance evidence be weighed?
In its Nov. 2013 submission to the Appeals Tribunal [read here], IWC points out that the Tribunal itself has recognized through numerous decisions that surveillance evidence is of limited probative value. Yet such evidence, particularly from video surveillance, can have a vast prejudicial effect: carefully selected snippets from a person’s life can be misleading yet have the air of truth because presented in a recording. The Legal Clinic details its concerns on the quality and use of such evidence, noting also that while surveillance is a weapon wielded against workers it is not a tool that is equally available – after all, injured workers are not allowed to make surveillance of the workplace.
Lippel, K. (2003). Legal and social issues raised by the private policing of injured workers.
Taddese, Y. (8 April 2013). Insurer to pay $200K in punitive damages (Law Times) – in the Fernandes v Penncorp decision, Ontario Superior Court issues a warning about the use of surveillance evidence.