Tapes kept from workers

By JEREMY LOOME, EDMONTON SUN

The Workers' Compensation Board has routinely withheld video evidence from injured workers, despite legislation requiring full disclosure, the Sun has learned.

The WCB is changing the policy after a complaint to Alberta Ombudsman Gord Button was upheld and says after Dec. 1, it will release all surveillance evidence to workers.

The revelation comes after local injured workers advocate Kevin Becker discovered large sums paid to Edmonton-based private investigators for surveillance of his clients - although no surveillance results were in the clients' files.

WANTS ANSWERS

In a May letter, Button told Becker he supports his complaint and wants answers from the WCB. "I have written to the president and chief executive officer of the WCB with my recommendations and asked him to provide me with a response. When I hear from him, I will be in touch with you again to provide my final conclusions on this investigation."

The Ombudsman's office is prohibited from discussing its investigations publicly. But Becker says the issue is one more reason to fully review WCB operations and contentious claims against the board.

"They just refused to put that investigative information on file when I identified it," says Becker, a former WCB case manager. "You couldn't do this in a criminal court. If you withheld that kind of information during discovery, you'd be in big trouble."

Becker believes there's a culture of denying claims within the WCB and it will go to lengths to hasten that process.

"They have a system of incentives where they pay people more based on their performance, and one of the many criteria is cost. How do you control costs? I can speak as a former case manager that there may have been performance indicators, but when they reviewed performance, they always came back to cost of the file and getting rid of it."

Becker says he was told by the WCB the investigations proved irrelevant to the case. "If someone secretly surveils my client for two months and they can't find any indication that he is faking his injury, does it not stand to reason that might in fact support his claim?" he suggested.

Former appeals commission chair Rick Vermette, now a labour rep, says he ran into a similar case.

"Back before the legislation split the appeals commission off as a separate entity from the board, one of the registrars reported that she was checking the payment screens for a particular case and noticed they were paying for surveillance, but we'd heard nothing about it," he said.

Becker's client Ralph Teed, who fought the board for 20 years to get benefits, complained a video tape used in his case appeared edited, with large time sequences removed. At one point, the investigators appear to videotape the wrong man.

The WCB says it is against its policies for tape to be edited. "We contract with professional investigation companies whose techniques ... are driven by the rules of evidence, the Charter of Rights and Freedoms and our own standard of investigative ethics," said spokesman Jacqueline Varga. "The WCB special investigation unit does not allow editing to be done by our service providers."

At the time of the surveillance, Teed had no clue what was going on. His neighbours, however, had a few ideas.

"The neighbours saw these people over there and someone went over there and they said they were cops watching a drug dealer," says Teed. "And this came back to me. And so here I didn't realize, the person they're watching is me!"

MISCONSTRUE

There is also, Teed notes, a secondary question: can the WCB release a client's information to an outside investigative firm without contravening the Freedom of Information and Protection of Privacy Act. "It's one thing for them to have the information, because the worker has given them permission. But my understanding is that they can't just give it out to some outside company they're paying for a job."

Advocate Theresa Roper says WCB private investigators go to lengths to misconstrue a client's condition, and did manage to catch one behaving more energetically than expected.

"The problem is, he's on huge doses of morphine that WCB paid for, and he's at his father's funeral. He'd advised them in advance that he was going there, and that he was going to a pallbearer because this was the last time he was going to be able to do anything for his father. The videotape showing that he could lift weight was him carrying his father's casket. The videotape that shows he could sit for 25-30 minutes instead of the 10 he claims was shot in the funeral.''

The WCB then deducted from his benefits for the time he was at the funeral and out arranging it.

"He says to me, 'I know I did that stuff. And for two weeks afterwards I could barely move. But damn it, I was going to my father's funeral.' "

They won the case on appeal.