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