Question: How should an employer handle a situation where it suspects that an injured worker who is off work and receiving workers’ compensation benefits is not being honest about the extent of his injury?
Answer: Employees who make workers’ compensation claims are expected to be honest and forthright in their dealings with their employer and with the applicable workers’ compensation tribunal. In some situations, however, an employer may feel it has grounds to challenge the veracity of an employee’s workers’ compensation claim.
For example, the employer may feel the employee’s injury was not suffered at work (or at all), the employee is exaggerating the extent of the injury or the employee is secretly working on the side while claiming compensation benefits.
In most jurisdictions, when a workers’ compensation claim is filed, an employer is given the opportunity to express any concerns or objections about the claim. In British Columbia, for example, when an employee suffers or claims to have suffered a workplace injury, the employer is required to file with WorkSafeBC a Form 7 “Employer’s Report Of Injury Or Occupational Disease.”
Among other things, this form asks the employer to describe the circumstances of the injury and indicate whether or not the employer objects to the claim. There is also a space where the employer can provide an explanation for any objections.
When a claim is filed, the workers’ compensation tribunal will need to determine whether or not to allow the claim. If the claim is allowed, there will also be a variety of other decisions made on the claim, such as the rate at which benefits will be paid and the duration of benefits. Such decisions must be made based on the available evidence, the applicable statutes and regulations and any relevant policies and procedures of the tribunal.
If the employer disagrees with the decision — for example, where the employer has good reason to believe the employee has not been forthright in the information she has provided to the tribunal — the employer may appeal the claim or request that it be reviewed, in accordance with the mechanisms set out in the applicable statute. In British Columbia, for example, an employer may request within 90 days of a decision on a claim to have the decision reviewed internally by WorkSafeBC’s review division. If the employer disagrees with the division’s decision, an appeal can be filed within 30 days with the Workers’ Compensation Appeal Tribunal, an independent tribunal that represents the final level of appeal for most issues.
Aside from the review and appeal process, an employer may have other options if it feels an employee is being dishonest about her workers’ compensation claim. In B.C., for example, WorkSafeBC operates a Fraud Tip Line that enables employers, employees and members of the public to report suspected fraud relating to claims made under the province’s Workers Compensation Act. Such reports can be filed by phone, email, fax or regular mail, or by completing an online “fraud allegation” form.
Similar reporting schemes exist in other jurisdictions. In Saskatchewan, for example, an employer can report suspected fraud or abuse anonymously — by phone, fax, mail or email.
In Ontario, a person who suspects a worker is being dishonest with the province’s Workplace Safety and Insurance Board (WSIB) can report the matter via a toll-free action line or by email. If suspected fraud is reported, the WSIB will create a call record that will then be referred to the regulatory services division for review and to determine what appropriate action is needed.
Colin G.M. Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or firstname.lastname@example.org.
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