Highlights of Noteworthy Decisions

Decision 2020 12 I
R. Nairn
  • Evidence (surveillance)

The worker suffered a left arm injury in December 2007. He returned to work on February 4, 2008, but stopped working again two days later. The worker underwent an independent medical examination on March 31. During March, the employer obtained surveillance evidence of the worker. The employer appealed a decision of the Appeals Resolution finding that the worker provided to the worker in February was not suitable and that the worker was entitled to LOE benefits after February 6.

In a preliminary matter, the ARO considered the surveillance evidence and ruled that it was inadmissible because that employer did not have good reason to undertake the surveillance, given that the independent medical examination had not yet taken place and that the employer had agreed to a return-to-work mediation.
In this decision, the Vice-Chair considered the admissibility of the surveillance evidence.
The surveillance evidence satisfied the requirements of Board policy. The issue of continuing LOE benefits involved consideration of the worker's ability to perform modified duties offered by the employer. The worker was under surveillance during the period under consideration, and addresses the worker's physical limitations. The Vice-Chair was satisfied that the evidence was relevant to the issue on appeal. The Vice-Chair noted that it would be up the vice-chair or panel hearing the merits of the appeal to determine what, if any, weight should be give to the evidence.
The Vice-Chair agreed with Decision No. 1104/07 that prima facie relevant evidence is admissible subject to discretion to exclude where the probative value of the evidence is outweighed by its prejudicial effect. Prejudicial effect refers to the danger that the evidence will be misused rather than to the extent to which the evidence undermines a party's position on the merits. In this case, the evidence was not prejudicial within the manner in which the time is used in Decision No. 1104/07.
The Vice-Chair concluded that the surveillance material would be admitted into evidence.