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
