Policy
The WSIB accepts audio/visual recordings as evidence, if they
- provide new or more complete information than is already in the claim file
- are relevant and pertain to the WSIB's duty to hear, examine, and decide issues under the Workplace Safety and Insurance Act, and
- are authenticated.
Guidelines
Definition
Audio/visual recordings - audio/visual recordings include audiotapes, videos, films, and photographs. For information about other types of evidence used in the appeals process, see the "Appeal System - Principles and Procedures" document on the WSIB website (www.wsib.on.ca).
When recordings are used
On occasion, the WSIB is provided with audio/visual recordings by someone who has an interest in the claim.
The WSIB uses these recordings as evidence if
- there is an issue in dispute
- the decision maker is presented with information to support the investigation of an issue
- staff in Regulatory Services or Legal Services are investigating an issue or considering legal action (see 22-01-05, Offences and Penalties - General), and/or
- it is necessary to assess a worker's ergonomic needs.
Authenticity
Audio/visual recordings
The WSIB only accepts recordings that are accompanied by a signed statement from the author
- setting out when (date and time) and where the recording was made, and
- confirming that the recording was not altered, and is a true representation of its subject.
If evidence is received that does not meet these guidelines, the WSIB returns the evidence to the sender and asks that it be authenticated and re-submitted.
The WSIB may ask the author to attend a hearing to establish the recording's authenticity through cross-questioning.
Weighing the evidence
WSIB staff must exercise caution when determining the weight to give information revealed in recordings, recognizing that
- audio/visual recordings make a dramatic impact on the viewer, and
- in general, recordings may be selective, i.e., information relevant to the issue in dispute, such as when a worker rests or experiences pain, may not be recorded.
Evidence from audio/visual recordings is considered in conjunction with all other evidence.
Decision-makers may request a health examination if the portrayal of a worker's physical capabilities is inconsistent with health care reports in the claim file.
Review of evidence by workplace party
The workplace party who is the subject of the information, or the representative, is given the opportunity to review the information and provide an explanation.
Disclosure of evidence at a hearing
Parties submitting recordings for a hearing must make these materials available as early as possible before the hearing, since all parties must be given time to review this evidence.
If recordings are first submitted at a hearing, the decision-maker may
- call a short recess to review the evidence, and give the other party an opportunity to review it, or
- adjourn the hearing to give the other party time to review the evidence and prepare a submission, or
- if both parties agree, continue with the hearing and permit the other party to make a post-hearing submission on the new evidence.
Application date
This policy applies to all decisions made on or after January 1, 1999, for all accidents.
Document History
This document replaces 11-01-08 dated June 15, 1999.
Previously, this document was published as:
09-01-09 dated January 4, 1999.
References
Legislative Authority
Workplace Safety and Insurance Act, 1997, as amended
Section 132(1)
Workers' Compensation Act, R.S.O. 1990, as amended
Section 74(b)
Minute
Administrative
#7, June 24, 2004, Page 378