Private Investigators and WSIB Claims

A June 2014 article in The Toronto Star entitled "Workplace Safety Insurance Board steps up spying on clients, documents show" claimed there was evidence of increased use of surveillance by the WSIB on suspicious benefit recipients.

The article is sympathetic to the plight of the injured workers involved and suggests the investigations may be unfair and unjust. Most of the individuals mentioned in the article are long-time recipients of WSIB benefits, with injuries dating back nearly a decade. It infers that the WSIB's aggressive cost-cutting efforts may be the reason for the surveillance.

We spoke with two of Clear Path's WSIB claims management experts, Anna Aceto-Guerin and Michelle Strassburger, to get their perspective on this controversy.

Q: The Toronto Star published an article stating that the WSIB is increasingly using private investigators. Have you seen evidence of this? 

Anna Aceto-Guerin: No, I have not seen evidence of increased use of private investigators or other surveillance techniques by the WSIB. Actually, in the past it has been difficult to get the WSIB to use private investigators, even when the employer had suspicions about philandering or fraud. If the employer had concerns, the WSIB typically will not investigate unless there is some kind of evidence (such as a witness statement).

Q: It seems that most of the individuals in the article were long-term benefit recipients. Does that change your perspective?

Anna Aceto-Guerin: The vast majority of claims we work on in our consulting firm are more recent and within the client's 4 year NEER window. So if the WSIB is increasing its use of surveillance on long-term claimants, we would not typically see that.

However, if the WSIB is investigating long-term claimants, I don't see that as necessarily a bad thing. In the Workplace Safety & Insurance Act, people are obligated to report any changes in their health (including positive changes or improvements) to the WSIB if they are receiving benefits. But anecdotal evidence suggests that the vast majority of people do not do this. Sometimes an injured worker receives a "Permanent Impairment” status prematurely, so if they begin to improve they should be reporting that. They may be receiving long-term benefits but are no longer as disabled as they were initially assessed at. In cases like that, the WSIB may be justified to take a closer look.

Do you have any experience with the use of private investigators?

Anna Aceto-Guerin: Some employers do hire a PI when they are suspicious about the validity of an employee's claim. However, we generally recommend that employers use the WSIB's TIPS line. Then the ball is in the WSIB's court to pursue an investigation if appropriate.

WSIB TIPS Line: 1-888-SI-LEADS (1-888-745-3237) 7:30am to 5:00pm, Monday to Friday or by email at sileads@wsib.on.ca 24 hours a day, 7 days a week.

Q: Michelle, have you had experience with private investigators?

Michelle Strassburger: I've had clients use them, but never hired them myself for any of the companies I have worked for.

Q: Have you known the WSIB to initiate the use of surveillance?

Michelle Strassburger: Not on a regular basis, but it does happen. I've had a couple of recent experiences with Clear Path clients where the WSIB did investigate a claim without our request. One of them involved a worker who had submitted 3 or 4 claims within a year's time and they wanted to send him to their own psychologist to determine entitlement for PTSD. They were satisfied with the results of the investigation and the PTSD claim was allowed.

Q: Do you have any suggestions for employers who do use private investigators?

Anna Aceto-Guerin: If you decide to engage a private investigator you should be clear on what you want to achieve. It is the denial of initial or ongoing entitlement that you are seeking? Or perhaps it is an issue with the suitability of modified work offered when the worker is saying they are too disabled to participate (but you've heard that they are waterskiing on the weekends). 

Here is a list of things to consider:

• Be clear on what you are trying to achieve
• Have multiple days of footage, not just one (regardless of how "damning" the evidence is)
• For video surveillance, consider chain of custody
• Acquire a signed WSIB policy statement from the author
• Include details like the date and time where the recording was made
  
• Ensure that the recording is not altered and is a true representation of its subject

As well, keep in mind the costs incurred by your company during this process. Make sure that the cost-benefit of using a private investigator is justified.

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Want to learn more?

Clear Path has a number of valuable learning sessions coming up that will help you increase your knowledge and give you strategies on effective claims management, including:

• Advanced Disability Management (Complex Claims, Mental Health, WSIB Appeals) on Sep 18th in Mississauga. Click here to learn more.
• Introduction to the WSIB's NEER Program (hands on workshop using real-world scenarios) on Sep 30th in Kitchener, Nov 26th in Cambridge, Dec 4th in Mississauga, and Dec 11th in Guelph. Click here to learn more.
• Advanced NEER Strategies (includes how to forecast claim costs) on Oct 9th in Toronto/ Markham. Click here to learn more.

If you have any questions, please don't hesitate to contact Anna Aceto-Guerin at (519) 624-0800 or via email at anna@clearpathemployer.com.

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