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In today's economic environment, many employers are willing to take a stand against workplace fraud but lack the resources and expertise to deal with these sensitive issues. Some of the issues most likely to plague the workplace are fraudulent Workplace Safety Insurance Board (WSIB) claims, flagrant absenteeism, substance abuse, theft, racial/sexual harassment, or workplace violence under the auspices of Bill 168.

One of the most costly issues 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.

Suspicious Claims and Fraud Indicators:
Employers can become aware of suspicious claims due to a number of different fraud indicators known as "red flags." The most common indicator 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 come from third party comments and workplace rumors which indicate the claimant has been seen engaging in activities inconsistent with the injury.

The question then becomes, what can a company do when red flags indicate a possible fraudulent claim? The situation needs to be evaluated and the services offered by a private investigator can effectively assist in the reduction of workplace fraud. But beware, suspicion alone, albeit grounded, is not sufficient to engage the services of a private investigator. The following guidelines are suggested 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 and privacy.

The private investigator's role is to obtain compelling evidence to determine whether the absence is legitimate or fraudulent. Hard evidence in the form of videotapes, photographs, audio tapes and documented observations are preferred. Our experience indicates that such direct evidence can often put an end to a dispute.

Employing a Private Investigation Firm: 
One of the first decisions an employer must make is deciding when to request the assistance of a private investigation firm. Delays in acting upon suspicious claims can protract a claim. For example, with a back injury, videotape evidence of a person shoveling snow on January 31 would not necessarily establish that the person was fit to return to work on January 15; as the person could have improved since their anticipated return to work date, and were able to shovel snow on January 31. In other words, an investigation needs to be coordinated in consultation with the client.

When selecting a private investigation firm, a company should ensure that high definition video equipment is utilized which includes a time/date stamp implanted on the screen. This will firmly establish the date of the observations and help the viewer calculate the length of time taken to perform the activity observed. The videotape must not only identify what the claimant is doing, but as well, the image must be clear enough to positively identify the subject as being the WSIB claimant. In many circumstances, it is essential that a minimum of three consecutive days of surveillance be conducted. If only one day of surveillance is conducted, a claimant may defend their activity by claiming they were bedridden the following two days.

For the most part, after completing an investigation, the necessity for an investigator's attendance at a hearing or a WSIB Appeal Tribunal is rarely required. The detailed reports and evidence submitted will clarify the issue of the claimant's credibility, capabilities and daily activities.

The Investigation:
Knowing a subject's habits can be fundamental to the investigative process. For example, there is no point commencing observation at 7:00 am if the subject leaves his or her residence at 6:00 am.

A professional investigator may conduct surveillance at all hours of the day and night and at a variety of locations (such as hockey arenas, baseball parks, health spas, shopping malls, restaurants and bars etc.). The list can be as varied as human activity.

The investigation will primarily deal with circumstances in which there is suspicion whether an employee is able to return to work. The investigator can also play a crucial role at the time of an alleged accident, particularly when the injury is serious or when there is a question whether the injury truly occurred in the workplace. The investigation should include obtaining statements, photographs, measurements and other information relevant to the dispute. When possible, the collection of information should take place immediately following the incident. As time passes, witnesses' memories fade and testimony will become less clear or credible as facts tend to get distorted, exaggerated or forgotten.

The WSIB system is an extremely valuable and needed entity in our society. When workers are injured at the workplace, it is appropriate that compensation is available. However, like in any system in society, there are those who seek weaknesses in the system and exploit the nature and intent of the program. Such fraudulent claims are detrimental to companies and fees increase. Employers are responsible for disseminating a dual message; if an employee has a legitimate claim, the employer will be there to guide him or her, but fraudulent claims will not be tolerated. An effective private investigation can assist the employer in that goal.