What do you do when an injured worker claims that they are incapable of any work, yet others report having seen them gardening or doing renovation work at home? What options are available to employers in these situations? Are there any rules to be followed?

Workers’ compensation boards across the country are required to investigate claims for benefits and pay workers when appropriate. They base the decisions to pay benefits on information received from the injured workers, employers and the treating medical practitioners. Decision makers must weigh each piece of evidence and make the best decision possible.



Compensation boards have the ability to investigate cases of potential fraud, but may choose not to conduct surveillance in all cases for many reasons. Often employers will have surveillance conducted on workers they suspect to be misrepresenting their level of disability, or working while they are receiving benefits. Employers will then provide this evidence to the compensation board hoping for some specific outcome.

Here are some things to consider if you are contemplating conducting surveillance on an employee you suspect of abusing the compensation system.
 
Determine what you are trying to accomplish
As an employer, are you trying to have the workers’ benefits closed or are you trying to have the worker charged with fraud? Because fraud is a criminal activity with a high burden of proof, I would recommend working toward having the workers’ benefits closed. Consider what the worker has stated to you as the employer and the company. Have they stated that they are totally disabled? Have they stated that they are unable to perform their regular duties? Have they stated that they are unable to do any modified work that you have offered them? The worker’s statements do make a difference as to what the surveillance will accomplish.
If a worker is claiming total disability and is observed working, that is evidence of severe misrepresentation and possibly fraud. In such a case, it is likely that the worker’s benefits will cease and possible that they could be charged with fraud. If the worker is claiming that they are unable to do their regular duties, but is observed performing their activities of daily living, that does not provide much evidence of misrepresentation. In such a case, there may be little or no effect on the worker’s benefits.

How are you going to conduct the surveillance?
Unless you have specific training and expertise in conducting surveillance and gathering evidence, I would not recommend doing it yourself. This could be dangerous and the evidence may not be accepted by the compensation board.

Because the surveillance information is considered evidence and will be weighed against other information in the claim file, it should be conducted by a professional. Surveillance firms are trained in surveillance techniques and in documentation and preservation of evidence. Surveillance taken by a professional firm will be provided to you with a transcript outlining what is contained in the video evidence and a letter confirming the authenticity of the documents. This must be provided to the compensation board to authenticate the evidence.
 
How long should the surveillance be conducted?
Because video captures moments in time, it is important for surveillance to be conducted over a period of time in order for it to be valid. Also, because of breaks in the surveillance, and given that subjective issues such as pain may not be captured, it is important to try to capture as much activity as possible. It is recommended that surveillance be conducted over a period of several days, and possibly sporadically over a couple of weeks. This will help to establish a pattern of behaviour and will diminish the possibility of the worker being able to claim that they were just having a “good day” on the day the surveillance was conducted.

Know that the worker will be entitled to view the surveillance and make answer to it.

If any decision in the claim file is made based on the surveillance, the worker will be advised that surveillance was conducted, what it contained and the reason why any decision was made. Workers are given the opportunity to view the evidence and make answer to it, providing an explanation as to the activities observed.   

Many employers are unaware of this when they decide to undertake surveillance. Consider that the majority of information in a worker’s claim file, unless it meets specific criteria requiring that be excluded, may be accessed by the worker at any time.

Surveillance can be an important tool in an employer’s claims management toolkit, but it should be used with caution and only in exceptional cases. When considering whether to conduct surveillance on a worker, consider why you want it and your intended outcome. Confirm any specific requirements for video evidence with your local compensation board if it is something you are considering.
 

David Marchione is an OHS consultant and paralegal with Gowling Lafleur Henderson LLP in Toronto, specializing in workers’ compensation matters. You can contact him at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or through the company’s website, www.gowlings.com/ohslaw.