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 Further, the evidence presented was so persuasive that she reversed her initial ruling and has withdrawn WSIB entitlement from this worker.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
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.
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