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

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

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