How to win friends and a workers’ compensation award

Matthew Styles was the manager of a restaurant in Melbourne, Australia in 2008. And it appears he was not so good at customer service.

When an allegedly drunk customer started to complain about how long it was taking to prepare his food order at the Red Rooster, Styles engaged in a foul-mouthed shouting match with the customer. But the verbal insults weren’t enough for these two. While it isn’t clear who actually started the fight, video footage from the order window shows Styles with his fists raised as the customer angrily approached him. Styles claimed later to be over-stressed because three of his staff had reported in sick that day.

In the ensuing fight, the video also captured Styles breaking his wrist while repeatedly pounding on the customer. Naturally, he filed a workers’ compensation claim for his injuries.

The Red Rooster was not amused by their employee’s behaviour and terminated Mr Styles for a breach of “behaviour standards”. And they objected to his workers’ compensation claim.

Although the employer pointed out that Mr Styles has a lengthy criminal record, a magistrate was not swayed and considered the customer to have been the aggressor. The employer was even less amused when the magistrate ruled that the broken wrist arose “out of or in the course of the employment”. The Red Rooster has appealed the judge’s decision, but there is no word if Styles ever objected to being fired.

Now, Australian rules may be a little different, but a word to the wise employer in Canada: Try to discourage your employees from beating the daylights out of your customers.

Posted by Paul Harris

WSIB Adjudicator sees the light

In a blog posted here March 9 by Cézanne Charlebois, we advised of an adjudicator who refused to reconsider her entitlement decision, even in the face of incontrovertible proof that the worker had fabricated a story. There was video evidence and telephone records to prove that he was not where he claimed to be – in fact, nowhere near it – when he alleged to have sustained a workplace injury. He simply could not have injured himself as he claimed. This information had already been provided to the adjudicator by the employer, but she refused to consider it or to reconsider once she had made her ruling.

The employer felt so strongly about this injustice that they incurred the expense of hiring a lawyer. They, as we, also believed the worker needed to be held accountable for what was clearly an attempt to misrepresent.

We made a detailed submission to WSIB and we are pleased to report that the adjudicator relented and agreed to reconsider her decision. Further, the evidence presented was so persuasive that she reversed her initial ruling and has withdrawn WSIB entitlement from this worker.

In our eyes, the worker is guilty of violating s.149 of the Workplace Safety and Insurance Act and should face charges accordingly. That fight is still to come, but we have the satisfaction of knowing that his employer is not facing the costs of what amounted to a fraudulent claim.

Posted by Paul Harris

Private investigators can help protect companies from fraudulent WSIB claims PART 1

Today many employers are willing to take a stand against workplace fraud but lack the resources to deal with these sensitive issues.  Issues most likely to plague the workplace are fraudulent Workplace Safety Insurance Board (WSIB) claims, flagrant absenteeism, drug and alcohol abuse, theft and racial/sexual harassment.

The most costly issue for employers can be suspicious WSIB claims. Whether an employee is truly unable to return to work may be an issue. WSIB claims can seriously affect the premiums employers must pay.  Moreover, WSIB has placed a heavy obligation on both the employer and the employee to facilitate a return-to-work program.  Failure to comply can result in serious financial penalties.

Employers can become aware of suspicious claims in a number of ways.  Perhaps the most common occurs when an employee’s absence is much longer than anticipated.  This can be accompanied by an apparent reluctance on the part of an employee to co-operate with the employer.

A second common source of suspicion can be comments from third parties (e.g. co-workers) that the claimant has been seen engaging in activities inconsistent with the injury.

What can a company do when red flags surrounding a claim create suspicion?  The services offered by a private investigator can effectively reduce workplace fraud.  But beware, suspicion alone, albeit grounded, is not sufficient to engage the services of a private investigator.  The following guidelines should be strictly followed before surveillance services are requested:

  • Were other alternatives considered before surveillance was ordered?
  • Were there reasonable grounds for suspecting fraudulent conduct by the employee?
  • Was the employee’s disciplinary record taken into consideration?
  • Would the video surveillance contravene any terms of the collective agreement?
  • The surveillance must be carried out with as little intrusion as possible and must not infringe on the employee’s right to dignity.

Part 2 of this blog will cover the private investigator’s role in a WSIB investigation.

Please visit our website for more information about the services we provide.

WSIB adjudicator refuses to reconsider even with undeniable proof she is wrong

Recently, one of our clients presented WSIB with videotape evidence that a
 worker was not where he claimed to be. Since he said he had sustained an
 accident at that location, you might think the fact he wasn’t there at all 
was pretty compelling evidence.

Not for this Eligibility Adjudicator. The video camera used is motion
 activated so nothing is recorded until there is a vehicle or person entering
 the camera’s view. On the video, we see vehicles coming and going 
throughout the day but not one vehicle coming or leaving the company yard 
during the time when the worker claimed the accident occurred. Apparently,
 for her, proof of absence means the same as absence of proof.

The Eligibility Adjudicator refuses to even consider the video evidence as 
demonstrating that the worker was “not in the course of his employment” and
 says that she will not even review an expert report from an investigations
 company explaining that there is no vehicle entering or leaving the premises, 
and how “motion activated” recording works. She insists she has made up her
 mind, and that the expert report can be presented at an appeal. It does not 
matter to her that an Appeal will likely take up to 12 months to be heard.

Apparently this Adjudicator is unfamiliar with WSIB Policy 11-01-02, which 
states in part: “As an inquiry system (rather than an adversarial system),
the WSIB gathers relevant information, weighs evidence, and makes decisions.
The WSIB’s decisions and practices must be consistent with the provisions of 
the Act and the rules of natural justice.” It seems to me that 
incontrovertible proof ought to be considered ‘relevant information’ and 
that ‘natural justice’ would require the evidence be used as part of the
 decision-making process.

Not only should this claim be not allowed, the worker should be considered for section 149 charges.

What is really most stunning here is the Eligibility Adjudicator’s admission 
that, really, she can’t be bothered – she’s made up her mind and that’s all 
there is to it.

Posted by Cézanne Charlebois

WSIB fails to apply law about CPP benefits

Section 43 of the Act describes how benefit entitlement is to be calculated. Within that, section is the following text:

(5) The calculation of the amount of the payments is subject to the following rules:

2. The amount described by clause (2)(b) must reflect any disability payments paid to the worker under the Canada Pension Plan or the Québec Pension Plan in respect of the injury.

This seems to be a clear statement of the legislature’s intent – in law, as you know, the word ‘must’ is not negotiable. That is, if a compensable injury also attracts benefits under the Canada (or Québec) Pension Plan, then WSIB benefits are to be offset by an equal amount.

WSIB Case Managers routinely and regularly, almost without fail, do not take CPP/QPP payments into account when calculating WSIB payments. Indeed, they regularly tell employers or their representatives that they don’t ask the worker if s/he has applied, or suggest to the worker that they should. We fail to see how the Board can accurately apply the law if Case Managers are choosing to overlook the necessity of pursuing possible CPP/QPP confirmation from workers who appear likely to qualify for those benefits.

WSIB Policy 18-01-13 states:

Loss of Earnings (LOE)
The Workplace Safety and Insurance Act provides:
When calculating LOE benefits, the amount of net average earnings the worker is able to earn in suitable and available employment or business after the injury must reflect any disability payments paid to the worker under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP) in respect of the injury.

Future Economic Loss (FEL)
The Workers’ Compensation Act provides:
When calculating FEL benefits and determining the amount of net average earnings the worker is able to earn in suitable and available employment after the injury, the WSIB must have regard to any disability payments the worker may receive for the injury under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP).

[Note we haven’t added the emphasis – that’s the way it is in the published policy. We presume, therefore, the Board of Directors (who approve policies) really mean it.]

It matters. For Schedule I employers, they are bearing at least part of a burden that the Act says they should not. For Schedule 2 employers, they are paying the full freight for WSIB ignoring its own legislation.

Posted by Paul Harris