You’re on candid camera

Using private investigators to bust fraudulent workers’ compensation claims.

Many employers are willing to take a stand against workplace fraud, but lack the resources to deal with these sensitive issues. Issues most likely to plague the workplace are fraudulent workers’ compensation board claims, flagrant absenteeism, drug & alcohol abuse, theft and sexual/racial harassment.

The most costly issue for employers can be suspicious workers’ compensation claims. There may be an issue whether an employee is truly unable to return to work. Workers’ compensation claims can seriously affect the premiums employers must pay. Moreover, workers’ compensation boards are placing 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.

Employers can become aware of suspicious claims in a number of ways. Perhaps the most common 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 be comments from third parties (usually co-workers) that the claimant has been seen engaging in activities inconsistent with the injury.

What can a company do when red flags surrounding a claim create suspicion? The services offered by a private investigator can effectively reduce workplace fraud. But beware, suspicion alone, albeit grounded, is not sufficient to engage the services of a private investigator. The following guidelines should be strictly followed before surveillance services are requested:

•Were other alternatives considered before surveillance was ordered?

•Were there reasonable grounds for suspecting fraudulent conduct by the claimant?

•Was the claimant’s disciplinary record taken into consideration?

•Would the video surveillance contravene any terms of a 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.

The role of a private investigator is to obtain the “hard evidence” to determine whether an absence is legitimate. Hard evidence obtained by photographs (telephoto lenses), videotapes, audiotapes and documentation are best. The personal observations of the investigator can be helpful, but it is less significant than other types of evidence. In fact, the revelations on a videotape will often put an end to a dispute.

One of the first decisions to be made is deciding when to call in a private investigation firm. If there is a suspicious claim, delay in obtaining information could protract the claim. For example, with a back injury, a videotape of a person shovelling snow on January 31 would not necessarily establish that the person was fit to return to work on January 15. When selecting a private investigation firm, a company should request that the video equipment have a time/date generator which is implanted right on the screen. This will tie down the date of the observations, and help the viewer calculate the length of time taken to perform the activity observed.

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 his activity by stating he was bedridden the following two days.

The videotape must not only identify what the subject is doing, but the image must also be clear enough to identify the subject as being the compensation claimant.

Knowing a subject’s habits can be fundamental to the investigative process. There is not much point commencing observation at 7 a.m. if the subject leaves his residence at 6 a.m. 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, ski hills, race tracks, restaurants and bars). The list can be as varied as human activity.

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

The comments set out above deal primarily with circumstances where there is suspicion as to 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 where the injury is potentially serious or where there is a question as to whether an injury has truly occurred in the workplace.

The investigation should include obtaining statements, photographs, measurements and other information relevant to the dispute. The collection of information should take place immediately following the incident, if at all possible. As time passes, witnesses’ memories fade and testimony will become less clear or precise. The facts tend to get distorted, exaggerated or just forgotten.

There may also be circumstances where a company should investigate quickly before there is any opportunity for those involved to speak with each other and match their versions of events.

When it comes to workers’ compensation claims, employers are responsible for disseminating a dual message. If an employee has a legitimate claim, they will be there to guide them, but employees must also be aware that fraudulent claims will not be tolerated.

Brian Sartorelli is president and CEO of Investigative Research Group (IRG) with offices in Toronto, Barrie, Niagara Falls and London, Ontario. He can be reached at 1-800-721-7393 or
[email protected]

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