“Tapes Kept from Workers"

In 2003-2004 I became aware of the WCB suppressing evidence from investigations if the evidence did not support a contention of fraud against injured workers.   

I came to understand this through a careful review of payment records attached to one of my client’s WCB files.

Having an understanding of the WCB’s ‘nature of payment codes’ and other information contained in the payment history of the claim file I was able to establish that the Board had paid for investigations, who the investigation companies were, and the approximate time the investigations took place.   

Systematically reviewing other clients' files I also came to understand that this was not an isolated incident.   

I took my concerns to the WCB via their Access to Information Department. One of the initial positions the WCB took in relation to my concerns was to state that because the investigative material had not been used in decision-making it was not relevant to the file. Thus the WCB’s position was that if the information was in their estimation “irrelevant” it was not to be placed on the claim file   

I countered stating that said investigative material was evidentiary by virtue of the fact that it did not support fraud and therefore supported entitlement. I contended that in every instance investigative material should be submitted to the file, regardless of the findings.   

In essence, if the video of the injured worker demonstrated that they had restrictions, difficulties with mobility, demonstrated pain behaviour when in public settings, and other indicators supportive of a significant disability this information must be placed on the injured worker’s file.   

Moving up the WCB bureaucracy I continued to get the same response.   

In 2004 I submitted a complaint to the Alberta Ombudsman on behalf of my client.   

I argued that the Board’s practice was in contravention of the following sections of the Workers’ Compensation Act and Regulations, which I will simply list here for brevity.   

-WCB Regulations Section 11 (4); 
-WCA Section 13.2 (5);   
-WCA Section 13.4 (7); and,   
-WCA Section 46 (2). 

The above regulations and sections of the Workers’ Compensation Act mandate the release of “ALL” information in the WCB’s possession to decision-making bodies and other parties specified in the legislation.   

I advised the Office of the Ombudsman that the WCB’s practice was denying the Appeals Commission (AC) relevant information that could have a substantive impact on decision-making related to issues of appeal.   

I called into question the fairness of hearings before the Commission in which non-disclosed investigative material was excluded from the decision-making process. Particularly in cases where said information would’ve supported the appellant’s appeal for entitlement.  

Although the process with the Alberta Ombudsman was somewhat protracted, and after making several submissions over the course of 2005-2006, my client and I were advised on December 11, 2006 that the Ombudsman supported the position we had taken:   

“From an administrative fairness perspective, access to all information, including investigative material, is of critical importance. A worker is entitled to full and complete disclosure of the existence of all available information, particularly if the worker enters the appeals process.”   
(see scan below)   

The Ombudsman went on to further note that the CEO of the WCB had responded in November of 2006 indicating that effective December 1 of the same year all surveillance reports for investigations, upon completion, would be placed on workers’ claim files.  Moreover, the Ombudsman stated that the CEO had taken steps to amend procedures and properly notify staff of said changes.   

Upon receiving the decision my client and I felt the need to ensure that injured workers and the public were aware of both the WCB practice and the outcome of the Ombudsman’s investigation. My client contacted the Edmonton Sun, who in turn contacted me.   

The Edmonton Sun ran an article in late December 2006 titled:  “Tapes Kept from Workers". I apologize for the quality of the scan below, and I am only in possession of part of the article.

The article advised that the Ombudsman had upheld our complaint, and went on to quote portions of the Ombudsman’s letter. Of note is the journalist interviewing a former Appeals Commissioner who confirmed that in the past (prior to December 2006) an employee of the Appeals Commission had identified payments being made to investigators but that the investigation reports were not found on the appellant`s file received from the WCB.  

I believe the implications of the WCB’s practice of evidence suppression in this regard, and how it may have been prejudicial to injured workers’ appeals, has never been fully investigated and rectified. As such the concerns I had in the past remain today in relation to how this past practice may have prejudiced appeals prior to 2006.   

If you have concerns about the Board’s conduct in relation to your claim file, be it via investigations and/or other actions that may prejudice your claim, please feel free to contact AWCC.