Gordon Legal's Joshua Dorey and Jenny Forti
Workers who suffer an injury at work (or as a result of their work duties) are entitled to compensation under the Victorian Workers’ Compensation Scheme. This scheme is managed by the Victorian Workcover Authority (WorkSafe) and is commonly referred to as WorkCover. Compensation under the WorkCover scheme can be accessed by the injured worker irrespective of whether the employer was at fault in causing their injury or not.
As part of the claims assessment process, WorkCover insurers use private investigators to investigate the circumstances of a claim and to conduct surveillance of workers claiming benefits under the scheme.
In performing surveillance activities, private investigators are bound by the information privacy principles set out in the Information Privacy Act 2000 (Vic).
One principle of note is that the private investigator must not collect personal information unless that information is deemed necessary. Further, the information must be collected lawfully and not in an unreasonably intrusive way.
Process
The investigative process is undertaken by licensed and trained investigators / surveillance officers registered with WorkSafe. The two main types of investigations are:
| Circumstance (factual) investigations | Surveillance (activity) investigations |
| The purpose of these investigations is to determine the facts surrounding an injury.
· Circumstance or factual investigations are often arranged to: o assist in the determination of liability o examine common law potential § Witness statements § Photo/video of worksite and or work practices § Obtaining employment documents o examine recovery potential o investigate other aspects of the claim.
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The purpose of these investigations is to establish a worker’s current activities and capabilities.
· Surveillance should only be used if: o other, less intrusive methods of investigation have been considered and have been assessed to be ineffective and inadequate, or have been tried and found to be inconclusive and o there is adequate evidence to suggest the worker may be: § misrepresenting their disability § claiming excessive disabilities or § involved in the commission of a fraud. |
Insurance investigators often take personal injury video evidence or photographic evidence of injured workers. They typically look for evidence that will discredit the worker or their claim.
For example, if an injured worker relays to the WorkCover insurer that they have been advised by their doctor not to lift heavy objects, and the investigator obtains video or photographic evidence that the worker is carrying heavy objects, this evidence may be used as the basis to terminate a worker’s entitlements under the scheme.
Recommendations
An injured worker should follow their doctor’s advice in relation to their physical capacities and restrictions. The worker should avoid undertaking or participating in any activity that goes against that advice. If surveillance is obtained which is inconsistent with a doctor’s opinion in relation to physical capabilities, then the surveillance cannot be used to discredit a worker’s claim.
Interview
If a worker is contacted by a private investigator retained by the WorkCover insurer for an interview, the worker should consider:
- That the worker is not legally obligated to participate in the interview
- That they can seek to have the questions provided in writing
- That they should obtain legal advice about the benefits and pitfalls of participating in the interview
Rights during the interview process:
- At the start of the interview, the investigator must clearly outline the worker’s rights and advise of the following:
- The right to terminate or reschedule the interview at any time
- The right to suspend the interview to have a break at any time
- The right not to answer a question that is put to them
- That the investigator is not responsible for making determinations related to their claim for compensation benefits
- That the investigator has a responsibility to ask a wide range of questions in order to enable the decision maker to assess their claim
- The investigator must take control and terminate the interview if they consider it in the best interest of the claimant, notwithstanding that the claimant may wish to continue
- The investigator should ensure that questions are confined to issues relevant to the claim.
Social Media
It is common for WorkCover insurers to conduct thorough searches of an injured worker’s social media footprint. Often the Workcover insurer will use posts on social media made by a WorkCover claimant or their friends to create the impression that statements made about their claim are inconsistent with the images depicted online. This can compromise a worker’s credibility and lead to a termination of the worker’s entitlements.
The Workcover insurer and the investigators they engage must:
- Not cause any unauthorised access or modification to data held in a computer (hacking)
- Not attempt to circumvent privacy policies
- Not create false profiles and try to mislead a subject into investigations – (do not accept friend requests from people you don’t know)
- Not request family, friends, colleagues etc. to assist in investigations
- Only collect publically available and relevant material – (ensure privacy setting are turned on to maximum).
