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Internal documents show the WSIB considers psychological conditions or language barriers to be "red flags" for fraud and may order surveillance.

Lucas Oleniuk / Toronto Star Order this photo

Jennifer Williams is a WSIB client who was tailed by a private investigator and cut off from benefits.

Jennifer Williams is sitting in the darkened board room of a legal clinic watching a video shot by private investigators as they follow her down the aisles of Honest Ed’s and up the stairs which, because of a fall at work, she takes slowly — one by one — using her cane.

The former personal support worker, injured on the job in 2005, can see her grainy image through the window of a Shoppers Drug Mart as investigators wait outside, and more clearly as she loads small packages into the back seat of a van.

The video is the work of a private investigator hired by the Workplace Safety and Insurance Board which, internal documents suggest, was suspicious that Williams was secretly working and faking her psychological illness. Williams was followed a month after a board-ordered medical assessment by doctors at CAMH determined she was in pain, depressed because of her injury and a poor candidate to return to work.

This type of surveillance by the WSIB used to be a rarity, typically ordered when the insurance board received a tip from a caller, according to legal experts.

But documents obtained by the Star suggest the WSIB is spying on clients claiming to be seriously injured, now more than ever and often without cause.

“Now that we are conducting more surveillance related to misrepresentation of level of disability where we don’t have an actual allegation, e.g. call record, there have been lots of questions from compliance specialists around what constitutes sufficient grounds to warrant surveillance,” states a 2011 internal email from Bob Thomas, an employee in the WSIB’s regulatory services division.

Those “sufficient grounds,” according to the email, include dozens of indicators such as chronic pain, language barriers and problems speaking to an injured worker directly, frequent change of phone number or address, recovery times that are inconsistent with usual healing times, anti-social behaviour or overreaction and psychological problems.

Other “red flags” for fraud, as the board refers to them, include forms returned by someone else or not signed, an unreasonable distance travelled by the worker to see a doctor, a worker who is “never home, returns calls after hours, noise in background” or who has a “first medical treatment from chiropractor.”

The email written by Thomas says that although it may look like he is applying some kind of “voodoo science” in making his decisions to approve surveillance, “I actually have specific things I look for before making a request.”

The documents were obtained by the IAVGO Community Legal Clinic through a freedom of information request after surveillance was used to reduce the benefits of eight clients.

“We believe that the WSIB’s internal guidelines mean that the most vulnerable and precarious workers — those with limited English, psychological problems, lack of stable housing, temporary employment — are being targeted for covert surveillance,” said Maryth Yachnin, the IAVGO lawyer who is representing Williams in her appeal.

The WSIB couldn’t comment on Williams’ case because of privacy issues, but a spokeswoman said they do not target injured workers.

“Like any large insurance system, the WSIB does need to investigate potential compliance issues brought to our attention,” Christine Arnott wrote in an email. “These represent a small handful of claims, approximately 0.075 per cent of total claims received annually. Surveillance is used as a last resort only after considering all relevant information about a case.

“If it is considered necessary, we ensure that privacy is respected and protected.”

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Michael Green, an independent lawyer who began working on appeals for injured workers as a law student before he was called to the bar in 1984, is currently dealing with nine surveillance cases.

“The one that gets me is the psychological condition,” said Green of the WSIB’s checklist. “If you talk about workers with permanent impairments, the incidence of psychological conditions — depression — is extremely high.”

Green said long-term injuries often affect a worker’s family life, income and social connections and can lead to isolation. Depression is common.

“The fact that one of the reasons you may be surveilling someone is because there’s an indication of a psychological problem — to my mind that raises questions about discrimination,” said Green. “They’re not supposed to discriminate based on the type of disability. Mental disabilities are supposed to be treated the same as physical disabilities.”

Green also said at least half of his clients would raise several “red flags,” which leaves case workers with a huge amount of discretion in deciding who should be followed.

Yachnin said the WSIB targets clients who have injuries that could entitle them to long-term loss-of-earnings benefits, which adds more financial pressure to the already underfunded insurance board.

Williams was followed in 2011, six years after her initial injury, which is the time period when benefits usually lock in until age 65.

The WSIB receives more than 200,000 new claims annually and pays out $2.6 billion to injured workers each year, according to Arnott.

The WSIB’s insurance fund takes in less money than it needs to pay the benefits of injured workers, leaving it with billions of dollars in what is called “unfunded liability.” The Ontario government passed legislation requiring the board to get rid of that liability by 2027.

Green said the insurance board has been underfunded since then Ontario premier Mike Harris cut employer premiums by about 30 per cent and workers’ benefits by 15 per cent, leaving a gap between what the board took in and paid out.

The lawyer said investments helped the board cover the shortfall until 2007, when the market crashed. WSIB documents show their investments went down slightly that year followed by a drop of 15.5 per cent in 2008.

By the end of 2013, the WSIB’s unfunded liability was $10.6 billion, down from $14.2 billion at the end of 2012, the result of fewer injured workers, higher employer premiums, stronger investment earnings and “improved return to work and recovery outcomes for injured and ill workers,” said Arnott.

Green said the average client he represents typically receives full loss-of-earnings benefits for a year. After that, injured workers are told they are fit for some type of minimum wage work and their benefits are reduced accordingly.

According to Arnott, 92 per cent of all injured workers are back at work, with no loss in wages, within a year.

In mid-2012, the board created a branch called Secondary Entitlement, which deals with chronic pain disability and psychological trauma, which the board says are secondary conditions related to the original work injury.

As of April 2014, the branch has denied close to 35 per cent of claims, according to internal WSIB documents obtained by IAVGO.

Williams, the former personal support worker, was injured after she fell one Saturday in the dining room of the nursing home where she worked.

“I didn’t take it for anything,” the soft-spoken Williams said of the injury, until the pain increased overnight. On Monday, she went to the doctor who diagnosed a sprain and gave her medication.

When the injury failed to heal, Williams was sent for an MRI, which showed a large degenerative tear in her meniscus, the cartilage that works as a shock absorber in the knee.

The 54-year-old woman returned to work at the nursing home where she had been employed for four years, but even light duties such as delivering meals proved a problem.

“I got so depressed and frustrated,” said Williams.

Her doctor recommended she take more time off work and that’s when she said her “life turned upside down.”

Williams said she was tormented and bullied by her case worker, who asked her at one point if “she saw the WSIB on her pay stub.”

“That’s when I started getting depressed,” said Williams, a college grad who held down several jobs to support her family after emigrating from Jamaica.

“That’s when I started getting lost, when I started dealing with her, and it went on and on,” she said, breaking down.

Her marriage fell apart. In 2007, she began seeing a psychiatrist.

The WSIB ordered surveillance in September 2011, a month after the psychiatric assessment by CAMH, ordered by the injury board, determined Williams was unfit for work.

An investigator tailed Williams after a meeting set up by a case worker and followed her for a total of 52 hours during a seven-day period.

The 30-minute tape that was later handed over to Yachnin shows investigators also sat outside a home where Williams used to live, taking extensive video of an unknown woman unloading groceries from a car. The vehicle’s licence plate is clearly visible.

“The fact that the WSIB did not notice this breach of a third-party’s privacy suggests that the WSIB adjudicator or regulatory services branch did not actually properly review the surveillance evidence,” Yachnin contends.

According to internal documents, the injury board ordered the covert surveillance to confirm if Williams was secretly working as a personal support worker and to determine the “true” depth of her psychological and physical distress. The documents also say “the surveillance could also provide evidence of offences” under the Workplace Safety and Insurance Act.

The board used the video as proof that Williams was employable and ordered a workplace assessment, which was never completed because the injured woman was extremely upset and uncooperative, according to WSIB files.

In January last year, the board cut off her benefits because of her
non-cooperation and estimated she could make the top salary of a customer service employee at $26 an hour.

“Ms. Williams’ most disabling impairment is psychological and cannot be seen on videotape,” said Yachnin.

Williams is now on welfare. Her appeal will be heard this month.

Green, the injured workers’ lawyer, said that process can take up to a year and a half. If the first appeal to the board fails, an outside tribunal may hear the case, which adds another year to the outcome.

source: http://www.thestar.com/news/gta/2014/06/16/workplace_safety_insurance_board_steps_up_spying_on_clients_documents_show.html