Employers and Workers Compensation Claims: When to Hire a Private Investigator and What Evidence You Need

Workers compensation claims can present difficult challenges for employers. Most injured workers are entitled to have their claims investigated and adjudicated fairly. At the same time, employers may encounter circumstances where information provided by a worker appears inconsistent, incomplete, or potentially misleading.

When an employer has legitimate concerns about a WCB claim, a private investigator can help gather independent, properly documented evidence that may assist the employer, its legal counsel, or the Workers Compensation Board of Manitoba in assessing the circumstances.

The key is to investigate facts—not assumptions.

When Should an Employer Consider Hiring an Investigator?

An investigation may be appropriate when there are reasonable grounds to believe that information relevant to a claim requires independent verification.

Examples can include circumstances where an employee reports significant physical restrictions but information suggests they may be performing activities inconsistent with those restrictions.

Other circumstances may include conflicting accounts of how an accident occurred, questions concerning the timing or severity of an alleged injury, information suggesting undisclosed employment or self-employment, evidence of recreational or physical activities that appear inconsistent with reported restrictions, or significant changes in the worker's activities that may be relevant to the claim.

An investigator may also be retained when an employer has received credible information from a witness, customer, co-worker, social-media source, or other third party that warrants further investigation.

Importantly, suspicion alone should not be treated as proof of fraud.

The purpose of an investigation is to establish facts that can be independently evaluated.

What Can a Private Investigator Investigate?

Depending on the circumstances and the investigator's legal authority, an investigation may involve several sources of information.

Surveillance can document and video-tape observable activities in public places. This may include walking, lifting, carrying, driving, entering and exiting vehicles, performing work, participating in recreational activities, shopping, travelling, or other physical activities that may be relevant to the specific restrictions or allegations being investigated.

Open-source intelligence may also be relevant. Publicly available social-media information, photographs, videos, business information, public records, websites, advertisements, and other publicly accessible information can sometimes provide investigative leads.

Witness information can also be important. A person who observed the workplace incident, the worker's activities, or other relevant circumstances may have information that helps establish a timeline or clarify inconsistencies.

Employment and business information may be relevant where there is reason to believe a worker has returned to work, is operating a business, performing contract work, or participating in other employment activities while receiving benefits.

The investigator's job is not to decide whether a claim is fraudulent. The investigator's job is to gather and document evidence objectively.

What Evidence Should an Employer Provide to the Investigator?

The quality of an investigation often depends on the information provided at the beginning.

An employer should provide as much relevant information as legally appropriate, including the worker's name and contact information, photographs, relevant medical or occupational information available to the employer, work duties, and information concerning the worker's alleged limitations, workplace incident reports, photographs or video of the incident if available, relevant witness information, and the reason the employer has concerns. The latter is important if the investigator is needed to interview witnesses.

If there are specific inconsistencies, they should be clearly identified.

For example: The worker reports that they cannot lift more than 10 pounds, but the employer has received information that the worker may be performing construction work. That is considerably more useful to an investigator than receiving information from the employer that "We think the worker is lying." In fact, this would not be a reasonable basis to move forward on a surveillance.

The investigator can then determine what evidence, if any, can be lawfully obtained to address the specific issue.

Why Surveillance May Be Used

Before authorizing surveillance, the employer should be able to answer five questions:

1. What specific concern is being investigated?

There should be reasonable grounds to conduct a surveillance. For example, if a co-worker disclosed to management that he/she saw the claimant employee working while receiving workers compensation benefits. This would be a good example of a reasonable ground.

2. What are the reasonable grounds?

The employer should document the information that caused the concern before surveillance begins.

This could include discrepancies in records, statements from witnesses, admissions, publicly available information, workplace observations, or inconsistencies in information provided to the employer.

3. Why is surveillance necessary?

The employer should document why surveillance is reasonably capable of establishing or disproving the suspected conduct.

For example:

"We want to prove or disprove the allegation the employee may be working while receiving Worker's Compensation benefits.

4. Have less intrusive methods been considered?

This is particularly important.

Before surveillance, an employer may consider whether the issue can reasonably be addressed through:

• workplace records;

• interviews;

• documents;

• attendance records;

• access logs;

• company computer or system records where lawfully available;

• publicly available social-media information;

• clarification from the employee; or

• other existing evidence.

If those methods cannot reasonably answer the question, the justification for surveillance becomes stronger. The employer should be able to show why the above records could not be utilized. For example, it is unlikely that the employee will be truthful and disclose that he/she is working elsewhere to their supervisor by admitting fraud.

5. Is the proposed surveillance proportionate?

This is where the employer needs to be particularly careful: Manitoba's Privacy Act specifically identifies surveillance of a person, their residence or vehicle as conduct that may constitute a violation of privacy, and a substantial and unreasonable violation of privacy without lawful justification can give rise to a civil action. The Act also addresses the admissibility of evidence obtained through a privacy violation.

So the question the employer must ask? "Is this particular surveillance justified, reasonably necessary, appropriately limited, and conducted in a lawful manner?"

In this case, conducting surveillance would be justified because surveillance may be the only discreet investigative means to find out if the employee was in fact working. There is no reasonable expectation of privacy in the public. Due to the Federal Privacy Legislation in Canada, employers are restricted in disclosing information about an employee to third parties.

Social Media Can Be Evidence—But It Must Be Verified

Social-media information can sometimes provide valuable investigative leads.

A worker may publicly post photographs or videos showing travel, recreational activities, employment, construction projects, sporting activities, or other activities that may be relevant to the claim.

However, an investigator should verify the source, date, identity, context, and authenticity of the material wherever possible.

A photograph posted online does not necessarily establish when it was taken. A photograph may have been uploaded after the event occurred, and social-media accounts can contain information that is incomplete or misleading when viewed without context. Furthermore, the metadata is generally scrubbed in online social forums for privacy reasons.

For this reason, social-media information should generally be treated as an investigative lead requiring corroboration rather than automatically treated as conclusive evidence.

Can an Employer Terminate an Employee for WCB Fraud?

This is an area where employers need to be extremely careful.

An employer cannot terminate, lay off, transfer, or demote a worker simply because the worker made a WCB claim or reported a workplace injury. The WCB specifically identifies retaliation for making a claim or seeking medical attention as prohibited conduct.

However, a WCB claim and employee misconduct are two different issues.

If an employer obtains reliable evidence that an employee engaged in serious dishonesty, fraud, theft, wilful misconduct, or other serious misconduct, the employer may need to consider whether disciplinary action or termination is appropriate.

Under Manitoba Employment Standards guidance, just cause can provide an exception to the normal notice requirement, but the employer bears the onus of proving just cause. Manitoba identifies theft, dishonesty, violence, wilful misconduct, habitual neglect of duty, disobedience, and conflict of interest as examples of conduct that may constitute just cause, depending on the circumstances.

The important distinction is: An employee cannot be terminated simply for filing a WCB claim. But misconduct that is independently established may have employment consequences, even when the employee has a WCB claim.

Because termination decisions can involve employment standards, human rights, labour relations, contractual obligations, and civil law, employers should obtain appropriate legal advice before terminating an employee for alleged fraud or dishonesty.

The Investigator's Role

A properly conducted investigation can help establish timelines, document activities, identify inconsistencies, locate witnesses, preserve publicly available information, and provide photographs, video, and written reports where appropriate.

When Should an Employer Call an Investigator?

Employers should consider obtaining professional investigative assistance when there are specific, credible facts that warrant further investigation—not merely because an employee has filed a claim or because they suspect the claim is fraudulent.

If you have concerns about a WCB claim, an investigator can discuss the circumstances with you confidentially and determine whether there is a legitimate investigative issue that can be addressed.

Duncan Investigations Inc. provides investigative services involving workplace matters, surveillance, insurance and disability claims, corporate investigations, OSINT and evidence gathering.

Our approach is evidence-based: document the facts, corroborate the information, and allow the appropriate decision-maker to determine what the evidence means.

For a confidential consultation, contact Duncan Investigations Inc.

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