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Surveillance

I am under constant surveillance

W orkCover insurance companies use an array of dirty tactics, one of them is the use of private investigators to conduct surveillance of injured workers. In this article, we will give you a summarised overview of the use of surveillance during WorkCover claims.

Surveillance of injured workers does really happen

Yes, private investigators are used by WorkCover insurance companies to follow you, video you, spy on you and investigate you! Some private investigators will make even make phone calls to you and/or pretend to be somebody else. Some will hide in cars and vans with tinted windows, some will pretend to watch birds in your street! Some will hide in the bush or pretend to be a patient. And surveillance and the use of private investigators is, sadly, a legitimate and effective tool used by workcover insurers.

Sometimes the information they uncover about you will be used as a reason to deny you certain (or all) WorkCover benefits.
Sometimes, the gathered uncovered information about you is thrown as a surprise in a Court of law. For example, they may ask you specifically if you are able to go shopping and carry grocery bags during a hearing, and you can be pretty much assured that suddenly a video or pictures will be shown of you carrying groceries, or pushing a trolley!

While most of the surveillance will not cause you any harm – and may, in fact, help your case – surveillance can have a devastating impact on your claim if it shows that you have been exaggerating or have been lying.

WorkCover insurance companies will undertake surveillance, and your best protection is to always be honest and to always tell the truth.
Whether you talk to your doctor, an independent medical examiner (IME), or your lawyer, or a Judge, always be honest. If you are, for example, asked if you can carry groceries, just be honest if you can, but also always remember to make the after-effects of doing so known. For example, if you have a weight lifting restriction of let’s say 2 kilos and you happen to carry a grocery bag of 5 kilos (because you had nobody to help you), make sure you say so and that you, for example, suffered aggravation of pain by carrying too much. Don’t ever lie – that is your downfall. In the end it is always and only about your credibility.

It is well known in the Injured World that WorkCover insurers will most often use surveillance at certain times during your claim and in certain scenarios. These include:

  • Attending an independent medical examination (IME): always anticipate that you will be followed by a private investigator when you attend an IME as requested by the insurer. The reason is simple and that is that they will know exactly where they will find you, which makes it cheaper and easier to follow you.
  • Certain trigger times during your WorkCover claim: surveillance is often used to check up on or to verify the extent of the person’s injury or incapacity or the impact of the injury on their life at certain trigger points during the life a claim, ie at the 130 weeks (weekly payments) mark, or when the injured worker is seeking ongoing payment for permanent incapacity, or a lump sum impairment benefits, and most surveillance is conducted during serious injury applications via the narrative test to access common law damages.
  • Also the longer you are unable to return to work, the greater the chances are that the insurer will put you under surveillance. It is very unlikely that you will be followed if you have returned to work, and/or are not asking for any additional WorkCover benefits, including (but not limited to) new medical treatment.
  • It is possible that your angry neighbour or ex calls the WorkCover Fraud line, suggesting that you are being dishonest in some way
  • Some of your colleagues or even your boss may have some suspicions about you and call the insurer
  • If your mobile phone or home phone has a recording that may indicate that you are running some form of business, they may believe you are working a second job whilst simultaneously receiving WorkCover benefits
  • If you have posted information on your Facebook page (or other social media platform), or someone else has posted about you (eg. tagged) that implies that you are not honest, be very careful. It can be as simple as a picture of you doing some activity that is not consistent with your medical restrictions, such as dancing, fishing, anything! See our social media warning, as well as our article Social media posts can affect your WorkCover claim
  • If you have long term treatment, for example, more than 6 months of physio or hydro after surgery, the chances of you being put under surveillance will  also increase

Social Media dangers while on WorkCover

It is extremely important that you are aware that ‘evidence’ found on Social Media (Facebook etc.) is increasingly used by WorkCover (insurers & defense lawyers). It is also increasingly affecting the outcome of WorkCover claims.

If you have been injured at work, and your injury is a little more severe than let’s say a simple broken arm, you can be assured that the WorkCover insurer (e.g. Allianz, Xchanging, EML, etc.) – with the help of private investigators – will be combing your social media (e.g. Facebook) for images that contradict your claims of injury or the severity of your injury and the amount of pain you are suffering!

After having suffered a workplace injury, Ms. Injured testified in Court that her life had completely changed. That she had become isolated, a homebody, very depressed and that the majority of her friends were on the Internet – on Facebook. Ms. Injured even told her treating psychiatrist that “her life sucked”, and that she had become socially isolated.

But a few weeks later the Judge questioned Ms. injured’s CREDIBILITY!
And subsequently rejected her claim for thousands of dollars in damages, pain and suffering and economic loss.

Unfortunately, the defense (insurer)not only presented video surveillance of Ms. injured but also a whopping 46 pages from Ms.Injured’s Facebook account. Those Facebook posts and images (mainly those Ms. Injured was tagged in), showed her in various social settings including at a Karaoke, at a pub, at a dress-up party, and even sitting on a JetSki with her friend. Needless to say that the Judge found that these images were“completely inconsistent” with someone suffering from psychological trauma.

It has been alleged that more and more WorkCover cases are leaning on social media evidence. This is the very reason why most good personal injury lawyers will warn injured/ill workers to extremely be careful about what they post online. Most ask their clients to close their social media accounts until the case is settled!
Our question is: can injured /ill worker’s social media posts be a reliable ‘barometer’ of how they’re actually feeling? Especially considering that most normal people will have a tendency to show themselves on social media in only the sunniest nature?

In other words: what we post on Social Media generally consists of a series of small ‘snapshots’ of what we want others to see. So, how can it be used as ‘evidence’ to discredit an injured worker? For example, how can you accuse a person who suffers from severe PTSD, or anxiety, or depression – of lying based on their “happy”- looking Facebook pictures?

The fact is, most of us want to keep up appearances by depicting our lives as “happy”,  or “good”. That includes me, the injured author of this article.

Our Social Media posts tend to be “positive”, even for the most seriously injured among us. After all, who wants to read constant whingeing? Or see constant pictures of you being sad, in pain, or even your injury(ies)?

Social Media, in our injured opinion, can’t even be compared with the surveillance of “good days” and “bad days”; because we typically tend to portray ourselves as positive as possible.

Obtaining access to an injured worker’s Social Media material, especially if set behind privacy walls, is not straightforward, and certainly not automatic – with the exception of posts and images you are ‘tagged’ in and those who have been shared (and might be public).

Judges or Courts generally require strong evidence that the Social Media “material” is indeed relevant before they can order an injured worker to hand them over. And at times, even if they are subpeoned, some Judges may not put much weight on it.

In one such as case, an injured worker who suffered severe neck and shoulder injuries and had posted a couple of pictures on Social Media engaging in “inconsistent” activities such as on a day trip. The WorkCover insurer alleged that the social media evidence showed he was
lying and exaggerating his injuries. Thankfully the Medical Panel (in this case) was not convinced. The Panel found that the Social Media ‘snapshots’ did NOT show all the times the injured worker had had to decline to participate in certain activities and that after some
‘activities’ he actually reported significantly increased pain. One of those ‘activities’ was dancing with his daughter on her wedding day. The injured worker felt he could not let his daughter down on her wedding day, attended the wedding in severe pain and danced a song with her.
Afterward – and perhaps thankfully – he did attend his GP and complained of severely increased pain [from the dance]. But, as you can read, the matter ended up before a Medical Panel (and some end up before a Judge!).

This is not to say Facebook  (or any social media) materials are never relevant. They are, and many injured workers have had their benefits ceased, or reduced based on social media ‘evidence’.

Someone who says for example: ‘Oh, I couldn’t even drive to my own wedding,’ and then there’s a dozen tagged pictures of the injured worker behind the wheel of his car or truck, you can see why it becomes important.

But, in our opinion, it’s quite different when someone says, ‘I’m depressed,’ and you see a photo of them smiling. People with depression — they walk amongst us and you don’t even know, right? So ‘happy’ Facebook photos and positive status updates are not necessarily
suggestive of how someone feels, right?
WorkCover insurance uses private investigators who ‘assess’ claims by mining social media. In this digital age, they are cyber private investigators too. It has become
standard practice for the defence to develop a social media profile of an injured/ill worker in a workers compensation personal injury case. Worse, insurers will often take things out of context in an attempt to prove you are lying or exaggerating!

However, most personal injury lawyers (at least all those we know of) will tell their clients (injured workers) to be prepared to disclose medical, employment and social media records.

So, just make sure you are aware of that! Don’t say you can’t walk for long periods of time and then post pictures of yourself bushwalking.
Better yet, unplug from Facebook and other social media platforms until your workcover claim is over.

There are many articles about surveillance, private investigators and social media on our site (search keywords or click on relevant tags), including on our archived site. Below are a couple of articles from our archived site.

A real court case involving surveillance and social media

As shown in this Victorian legal case [Topaltsis v Crane Distribution Ltd [2013] VCC 844 (28 June 2013)], 
the injured worker sought leave to commence a proceeding claiming for pain and suffering damages, for a low back injury by reason of injuries suffered by her in the course of her employment with the defendant.

Whilst in her affidavits the injured worker explains in detail the extent the injury is affecting her, on cross-examination, the injured worker was said to have” presented as a poor historian who exhibited an extremely poor memory and a tendency towards evasiveness”. Unfortunately her Facebook was also “investigated” by the defendant and video surveillance showed she was capable of doing much more than what she claimed.

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2013/844.html>>

Surveillance Code of Practice

“Surely they won’t put me under surveillance?! I am genuine!”- YES THEY WILL!

We try hard to provide relevant and useful information as well as news articles on surveillance on injured workers, which is an issue that deeply affects many WorkCover Victims!

A WorkCover Victims Diary is interested to hear your stories about surveillance while on WorkCover and how it has affected you personally, your ability to function, your mental health and – yes – your world!

WorkCover spy

Following a work injury or illness, and once the critical or acute phase has passed, it will start to become obvious what the long(er) term effects on your life are likely to be and what you will need to manage your injury, illness, disability or recovery. During this period, it often slowly downs on injured/ill workers that they may need long term medical and financial support to help them adjust to their new situations. Many injured workers are not well equipped to deal with all the legal aspects of their cases, and will most often engage a personal injury lawyer to assist them with obtaining their rightful WorkCover compensation claim benefits. This is a long, difficult, frustrating and convoluted process that can take months or years – depending on the severity of the injury/illness, as well as on the impact the injury/illness has on the victim. This is a tough time, and most often, a nightmare, and more than enough for any ordinary person to have to deal with. But then, suddenly and out of the blue, another wholly unsuspected issue will threaten your future.

WorkCover surveillance can have a devastating impact on a workers’ compensation case. How frequently it occurs is speculative but it is safe to assume that it occurs very often. It occurs covertly (secretively), often under the form of video surveillance, and
at certain critical points during your workcover claim.

Private Investigators (PIs) are often hired by our state WorkCover insurance Agents (eg. Allianz, Xchanging, EML, etc.) In fact, it is usually your case manager that will instigate the surveillance of you, based on a “hunch” or in a desperate way to contain “costs” with regards
to your claim. These hired private investigators will literally spy on you. They work undercover and use remote control cameras, and even pinhole cameras mounted in their sunglasses, clothing, etc. They then try to obtain evidence that prevents injured workers from obtaining
WorkCover benefits, such as but not limited to weekly payments, assistive devices, home help, medical treatment.

Surveillance is allegedly used to catch “fraudsters”, however, the truth is that surveillance is used in countless legitimate cases of work injuries or illnesses, in the hope to catch you doing something that is not consistent with your doctor’s advice. In reality, surveillance is all about cost containment, meaning that the WorkCover insurer is trying very hard to deny or minimise your workcover benefits by ANY means.

Our best advice is to always follow your treating doctor’s advice and restrictions imposed on you. Follow it strictly! You may be bored senseless from the inactivity, and you may even think you feel well enough to do a little work around the house… Remember that you probably
have some very powerful painkillers in your body, and in your medicine cabinet in case you strain your weakened or injured body part(s). You may work around the house slowly, very carefully and with frequent breaks; but a private investigator may just be filming you putting the bins out, and this may well result in the loss of your WorkCover benefits! The same goes if you claim to suffer from severe depression, yet you are secretively filmed attending a wedding and smiling!

Surveillance can really undermine the credibility of the injured worker and his or her claim in the eyes of the treating doctor(s), independent medical assessors, and more importantly in the view of the WorkCover Agent (the insurers) and potentially in the view of a judge, should your case end up in court.

I spy with my littl eye

Despite warnings, there are some people who will nevertheless continue to engage in activities  that are classified as “inconsistent” with the physical (and even mental restrictions imposed on them by their doctor; or make social media posts that only serve as fodder for weakening the injured worker’s credibility or WorkCover claim. That is also the reason why we have a social media warning on our website!

Essentially, private investigators will try very hard to get a “real view”of your daily life, to assess your level of ability for the WorkCover Agent (insurer) to help them make a decsion about the level of financial and even medical support they are willing to provide you to
cover your needs. Sounds reasonable… Think again: the surveillance companies and their operators are in this surveillance business solely to make money. As such they will go to great lengths to film you in the most compromising situations possible! The WorkCover insurer (the Agent) who are liable to pay for yor workers compensation benefits, hire the
surveillance companies specifically to target you in an effort to substantially reduce the size of their financial liability to you, and in order to increase their profit! It is all about money, period! And YOU are the LIABILITY!

Private Investigators Code of Conduct

Private investigators are bound by a code of Practice and are, for example, not allowed to trespass private property.

The WorkCover Authority (VIC and all jurisdictions) considers that surveillance of an injured worker is a “legitimate tool for the management of a claim”, however, the WorkCover Authority does issue of code of conduct to its investigators under which they are expected and bound to operate.

The Code of Practice clearly states that “In performing all activity in connection with instructions, the Investigator agrees to be bound by the Information Privacy Principles set out in Schedule 1 to the Information Privacy Act (Vic.) and the Health Privacy Principles set out in Schedule 1 to the Health Records Act 2001 (Vic)”;

“All surveillance activity must comply with all
applicable laws, rules and regulations [including the Private Security
Act 2004, the Surveillance Devices Act 1999 (Vic) , the Privacy Act 1988
(Cth) , the Information Privacy Act 2000 (Vic), Health Records Act 2001
(Vic)”;

and that

“An Investigator must avoid any actions which may
unreasonably impinge on the privacy or other rights of other people (eg,
when taking photographs, avoid including, where practicable, other
individuals such as relatives and friends, who may be in contact with
the surveillance subject during the surveillance period).”

You can make a complaint about surveillance to WorkCover, for example in VIC you can use the following form.

There are also a Surveillance guidelines for agents (VIC)

Private investigators and complaints

VICTORIA

In Victoria, the licensing of private investigators is handled by Victoria Police under the Private Security Act 2004. More information from the Victoria Police site , including contact info for the licensing service.
Complaints can be lodged with the service. See https://www.police.vic.gov.au/search?q=private+security+act
There’s also a Private Investigators Code of Practice for investigators undertaking work for Worksafe Victoria.

Further reading:

WorkCover Surveillance: What is allowed and what is not allowed?

WorkCover may decide to conduct secret surveillance of your activities to determine whether you are physically and or mentally limited to the extent that you claim. This may involve a private investigator using a video camera or still camera to capture images of you while you are going about your daily activities. Many injured workers ask us what Private Investigators are allowed to do and what they are not allowed to do

What are WorkCover Private Investigators allowed to do?

Private investigators hired by WorkCover insurance companies, usually work for a Surveillance company. They are supposedly licensed under the Security Providers Act. In Victoria, they are licensed under the Private Security Act and the Private Security Regulations 2005
However, these Private Investigators do not have any special rights. In fact, they have no more rights than those of an ordinary citizen!

A private investigator is legally allowed to take photos or videos of you and your home unless:

  • they trespass on your land in order to do so; or
  • they are recording “private activities” – these include but are not
    limited to: undressing, using the bathroom/toilet, showering or bathing
    or intimate situations where you would reasonably expect privacy.

A private investigator is legally allowed to take  a video of you going about your daily life inside or outside of your own home or at another private property.
Beware that they will most often follwo you to a medical appointment;
IME appointments are a favourite because they know where you will be!

A private investigator is legally allowed to follow you when you leave your house and film you in public places.

What are WorkCover Private Investigators NOT allowed to do?

Private invstigators are legally not allowed to:

  • trespass on your property
  • bug your phone
  • use a listening device to overhear, record or monitor a private conversation that they are not a party to;
  • access confidential government-held information
  • force entry to a premises
  • take video or photographs of you in a private place or doing a
    private act in circumstances where you would reasonably expect privacy.
  • seize your property

If you believe that a private investigator is  harassing you, acting unethically and/or is not abiding by the law, you can lodge a complaint with the Office of Fair Trading.

If a private investigator acquires video footage of you doing things that you told doctors you are unable to do, or that doctors have told you not to do (prescribed restrictions), you may come across as exaggerating your injuries and your claim – including benefits and potentially damages– may be jeopardised!

Resources

Security legislation and regulations (in all states)

Legislation is all the laws (Acts) enacted specifically to control and administer the private security industry. Regulations are the way that the legislation is applied.

https://www.asial.com.au/resources/legislation-and-regulations/security-legislation-and-regulations>>

Frequently asked questions about workcover surveillance

Private investigators under the magnifying glass:

  • It is not illegal for insurance companies to use private investigators.
  • While the industry is loosely regulated by the licensing of private investigators, the operatives are free to go about their job surveilling people as long as they do not fall foul of the Surveillance Devices Act 2007.
  • Under Section 8 of the Act it is illegal to trespass on private land or install or use surveillance or listening devices.
  • In NSW, it is illegal to enter private property (including vehicles and commercial premises) without a lawful reason unless the owner, occupier or person in charge has consented. If consent is denied or withdrawn, the visitor must leave. Separate consent is required to take photographs or other recordings while on private property. Hidden cameras can not be used without the consent of the owner, occupier or person in charge. Access to hospitals, childcare centres, nursing homes and schools is regulated.
  • Anyone in a public place can be photographed without permission. People on private property can be photographed without permission if they are visible from public property, provided the photographer is on public property.
  • Private conversations cannot be recorded by a third party without the permission of everyone in the conversation. Conversations in public places may be considered private if those involved could reasonably expect it to be private (for example, they are not talking in loud voices or in places where third parties can clearly overhear them).
  • Private investigators also cannot conduct themselves in a manner that constitutes harassment.
  • Like with any victims of harassment, claimants who feel they are being harassed by a PI have the option of taking out an Apprehended Violence Order.
  • In the case of claimants being surveilled it is rare they know the identity of the person they are alleging is behaving in a harassing manner.
  • To many former police officers suffering from PTSD, depression and anxiety, the process of returning to a police station to take out an AVO can cause further anxiety.
  • It is a criminal offence for companies to utilise material that has been obtained illegally.
  • See article: Police officers suffering from PTSD hunted like criminals
Q. Will a workcover investigator really follow me?

A. Most likely. Employers and workcover insurance companies often use private investigators to conduct covert video surveillance of your activities . Surveillance is done with the hope of obtaining some incriminating evidence that can be used against you.
In Victoria, for example, it is well known that most surveillance, with the exception of where fraud is suspected, is used by WorkCover more to check up on or  to verify the extent of the person injury or incapacity or the impact of the injury on their life at certain trigger points during the life a claim, ie at the 130 weeks (weekly payments) mark, or when the injured worker is seeking ongoing payment for permanent incapacity, or a lump sum impairment benefits, and most surveillance is conducted during serious injury applications via the narrative test to access common law damages.

Q. How will a private investigator track me?

A. Private investigators will generally use video equipment to record/film your activities. Some will call your house under false pretenses to get information. Some private investigators try to speak with your neighbours to see if you are working somewhere else. It is not uncommon to be followed from your home to the supermarket. We have even seen many investigators follow injured workers to medical examinations (IMEs), as the date and time of your whereabouts are known, making surveillance easier.

Q. Will private investigators look at my Internet activity?

A. Yes. Workcover insurance companies will use social media websites like Facebook and Twitter to deny WorkCover benefits. Investigators examine these websites looking for incriminating pictures and/or comments.
For example, a picture of you sitting on a boat may not seem like a big deal, but it will be argued that it shows you are not disabled, or not depressed or whatever. Never post anything on the Internet that can be misinterpreted or taken out of context. Even innocent pictures can and will be taken out of context.
That’s the reason why we have a Social Networking Warning on our own site!

Q. Why do insurance companies perform these investigations?

A. Workcover insurance companies will tell you that they perform these investigations to stop fraud and abuse. But in reality, they are just looking for a way to deny or limit your workcover benefits by claiming you are not as injured as you say you are. Real injured workers’ fraud has been estimated to be only around 1 to 2%.
They will also take snippets of video out of context and try to prove in court that your injury is not real.

Q. What can I do to protect myself from investigators?

A. You should be careful at all times when you are out in public or working around your home. Do not perform any activity beyond the restrictions set by your doctor(s). You should also avoid any activity that the insurance company can use against you.

Q. Are Private Investigators bound by a Code of Practice -YES

The Code of Practice may vary from state to state. The latest VWA (WorkSafe VIC) Private Investigator Code of Practice can be read here:
VWA Code of Practice for PIs

As an injured or ill worker, there are basically six (6) important things you should know about surveillance:
  1. As mentioned above in our FAQ list, many private investigators take advantage of the times that you are at doctor appointments, particularly at independent medical examinations. They’ll make sure they can properly identify you, your car, where you live, and how active you are.
  2. The private investigator may not find anything suspicious, but that doesn’t mean that the PI won’t try again. The surveillance may happen again in a few weeks or even months.
  3. Private investigators don’t just work from 9-5 on weekdays. They’ll also work on nights and weekends, when you may not expect them to be watching.
  4. Try not to talk about your daily activities with people. After filing a workcover claim, your employer may try to get information from your co-workers about where you like to go in your spare time. Investigators may go to these places to check up on you. Same goes for mentioning what you’re up to and where you’ll be going on your Facebook page!
  5. Make sure you follow your doctor’s instructions. If you are caught doing something that you were told not to (or told your doctor you can’t do!), your case may become less valuable and you may be seen as not credible. You should avoid activities like carrying heavy groceries, playing sports, making car repairs, or working on the outside of your home.
  6. The only income you receive should be from your weekly payments. If you earn additional income, even from odd jobs like babysitting or cutting grass, it is considered to be fraud.

There are heaps of articles on our site related to workcover surveillance and private investigators, you can find them under the tag ‘surveillance’ or conduct a search with typing in the keyword ‘surveillance’ or ‘private investigators’ in the search box. Many articles have been archived: click here for Surveillance and here for Private Investigators.

Examples:

Injured workers are not problem people, we are people with a