WorkCover insurance companies use an array of dirty tactics, one of them is the use of private investigators to conduct surveillance of injured workers.
Surely they won’t put me under surveillance?! I am genuine!”- YES, THEY WILL!
Learn about workcover surveillance and private investigators
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. SURVEILLANCE!
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, workcover 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! 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.
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 decision 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 your 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!
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!
1. Workcover surveillance does happen and more often than you think
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. 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.
1.2. Workcover surveillance is likely to occur at specific times during your workcover claim
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
2. Workcover surveillance: what is allowed and what is not allowed
Do you feel like you are being watched? If you are on WorkCover, it’s possible the insurer has put a private investigator on your tail.
A WorkCover insurer may have grounds to have a worker followed if it suspects the worker is abusing the system. The WorkSafe guidelines state that surveillance of a worker may be appropriate where less intrusive means of investigation have failed, and the insurer has adequate evidence to suspect that the worker is misrepresenting their injury, playing down their capabilities, or is involved in a fraud.
Private investigators must be licenced and abide by various laws and the WorkSafe code of practice for private investigators. This document is available online. Being ordinary citizens, private investigators cannot trespass on a worker’s property to obtain surveillance. Investigators must only conduct surveillance of workers from what the Code describes as a “public vantage point”, being any place that members of the public have the right to access, public or private.
This means that from the street, an investigator can watch a worker in their front yard washing their car, pulling out weeds, or dragging in the wheelie bin. They can also follow a worker in their car or on foot to a public place, like the park or the beach, or into shops and other business premises, such as a hardware store, where people may enter but not necessarily purchase anything.
The investigator may take photos or footage of a worker, or both, and write up a worker’s movements and activities in a surveillance log.
However, investigators must not unreasonably interfere with a worker’s privacy. They cannot film a worker inside their home, at a place of worship, or at a ceremony such as a wedding or a funeral. Filming a worker at conciliation or at court is off-limits, as is filming a worker inside a doctor’s clinic.
There are limits on the number of hours of surveillance the investigator can undertake at a time, but workers can be watched on multiple occasions. If an investigator thinks the worker knows they are being watched, the Code says they must stop the surveillance, but may get approval to continue their investigation.
Investigators can also look at a worker’s social media, but they must not use illegal or dishonest means to obtain information. They must not create false accounts to send friend requests to a worker or message them or ask a third party to access a private worker’s account.
If you think an investigator has behaved inappropriately, you can make a complaint directly to Worksafe.
2.1. 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
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 follow 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.
2.2. What are WorkCover Private Investigators NOT allowed to do?
Private investigators hired by workcover agents 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 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 workcover claim – including benefits and potentially damages– may be jeopardised!
3. Legislation about the surveillance industry
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.
4. Code of Practice for Private investigators
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 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)”;
“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 Surveillance guidelines for agents (VIC)
5. Complaining about private investigators
In Victoria, the licensing of private investigators is handled by Victoria Police under the Private Security Act 2004. More information from the
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.
6. Social media increasingly used by WorkCover & Private Investigators
It is extremely important that you are aware that ‘evidence’ found on Social Media (Facebook etc.) is increasingly used by WorkCover (insurers & defence 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 thousand of dollars in damages, pain and suffering and economic loss.
Unfortunately, the defence (insurer)not only presented video surveillance of Ms. injured but also a whopping 46 pages from Ms Injured 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!
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?
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 may 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 subpoenaed, 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. Afterwards – 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?
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.
TIP: At the very least, ensure strict privacy settings (e.g. no tagging, no sharing allowed); and why not create an alter ego (identity)?
As shown in this Victorian legal case [Topaltsis v Crane Distribution Ltd  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 details 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.
(i) The plaintiff was questioned as to her symptoms as at January 2011. It was put to her that she consulted her physiotherapist on 20 January 2011, who recorded at that time:
“No back pain, hips a bit achy, but been doing heaps of walking. Uncle over from Greece.”
The plaintiff was asked:
“Q: It was the position as you described it to the physiotherapist?—
A: I’m sure I described – I can’t remember exactly what I told her but I’m just going by what I’m seeing what she has written herself.
Q: Do you disagree that that’s an accurate account of how you were reporting your symptoms to her?—
A: I mean here it’s got no back pain. I wouldn’t say no back pain at all.
Q: So you would not have no back pain?—
A: I could have I can’t remember.”
(ii) It was put to the plaintiff that in March 2011, she had presented to her general practitioner, who had recorded a history that her back was much better.
“A: I can’t recall back – – –
Q: It might have been?—
A: I can’t recall.
Q: Do you think it’s right that you told the GP that you continued with intermittent lumbar pain and were having physiotherapy?—
A: I can’t recall.”
(iii) It was put to the plaintiff that in June 2011, she presented to her general practitioner with intermittent lumbar back pain, to which the plaintiff responded, “I can’t recall”. When pressed on this issue as to whether her symptoms were present continuously or intermittently, the plaintiff responded:
“I can’t say back then how it was, I mean, with my back pain.”
(iv) The plaintiff was asked whether in April 2012, she had told her general practitioner that she was suffering intermittent back pain, to which she responded:
“A: I really can’t recall exactly what I said – what words.
Q: About a year ago it is fair, would you describe your symptoms as then being intermittent, that is not always there but coming and going and not as being severe? So the two things I’m asking you. Did it come and go, was it not severe, as at 12 months ago?—
A: I sound like a parrot but I can’t, I’m sorry I can’t recall exactly. The pain – I’ve always had back pain. Intermittent, like that word, I can’t recall.
Q: In the last 12 months what do you say about whether your condition has got better or worse or stayed the same. What’s your impression?—
A: My impression is how I feel I’ve, I deal with the back pain every day.”
(v) The plaintiff was asked as to her presentation to her general practitioner in November 2012. It was put to her that she had provided a history that her back pain was “not flaring up too much, using less analgesics”, to which she responded: “I don’t recall saying those words”. The plaintiff was asked:
Q: Is it possible, did you tell him that?—
A: I don’t recall. I can’t recall.
Q: Was that the position just a few months ago that your back wasn’t flaring up too much and you were using less pain relief?—
A: The pain relief I was still using, less, I don’t recall how many tablets but I use pain relief every day.
Q: Is it the position that in January 2013 you were having intermittent low back pain?—
A: I can’t recall.
Q: Was it the position in February this year that you only had occasion low back pain?—
A: It wouldn’t be occasional. I have lower back pain. … I wouldn’t use occasional I still have ongoing back pain … I constantly have pain in my back. There are times where it’s higher the pain but there is constant – I feel constant pressure on my back. I can feel that. … I can’t recall exactly what I would have said but I would have said I do have back pain on a daily basis.”
(vi) The plaintiff was questioned as to whether a few months ago her “back was not flaring up and you were using less pain relief”, to which she responded:
“The pain relief I was still using, less I don’t recall how many tablets but I use pain – relief every day.”
(vii) The plaintiff was questioned as to how often she had the symptoms emanating from her back into her leg, to which she responded:
“A: I do have pain in my leg like that runs down my bottom to the left but how often do I get it? I can’t say exactly how often but it is there.
Q: Every few months?—
A: It depends on activities my day, what I’ve done.
Q: So I could be every few months?—
A: I cannot say exactly.
Q: Well, can you do your best please?—
A: It could be, could be less. I can’t say exactly how often it is.
Q: Less often than every few months, you say it could be less, you mean less often than every few months. So perhaps every six months?—
A: No, it wouldn’t be six months.
Q: It’s more frequently than every six months you get pain in your left leg?—
A: I would say yes.
Q: But you couldn’t say how more frequently?—
Q: During 2011 were you making an effort to walk frequently for exercise?—
A: I can’t recall how often I would walk.
Q: In 2011 did you walk for exercise?—
A: I did try to walk.
Q: How often?—
A: I can’t recall how often.
Q: More often than once a week?—
A: I can’t recall.
Q: You really don’t know?—
A: Well I can’t say exactly two years ago how many times I walked. No.”
(viii) The plaintiff was taken to records of her general practitioner, Dr Vasquez, which contained regular entries of the plaintiff presenting with back pain. On 21 March 2013, the following entry appears:
“Occasional flare up of the pain.”
On 19 February 2013, the following entry appears:
“Comes in to update certificate. Occasional low back pain.”
On 21 January 2013, the following entry appears:
“Having some intermittent low back pain.”
The plaintiff was asked whether it was the position in January 2013 that she was having intermittent low back pain to which she responded:
“I don’t know”
When pressed as to whether she had made such statements to Dr Vasquez the plaintiff said that she did not recall the words she had used when speaking to Dr Vasquez but maintained that she suffered from constant back pain which varied in intensity.
Given the above entries in the records of Dr Vanquez which are in turn consistent with the earlier entries in the plaintiff’s medical records as to the presence of a pattern of lumbar symptoms often described as intermittent and which are aggravated by activity and involve periodic flare ups, I do not find the evidence by the plaintiff as to the presence of constant symptoms of back pain to be persuasive.
(ix) The plaintiff was asked how long she continued with her gym program which she commenced in 2009. Her response was that she was not sure. The following exchange took place:
A: It would have been a couple of months easy.
Q: Just two months or so?—
A: No it would have been more – long than that but the exact time I’m not sure.
Q: Well roughly?—
A: I can’t remember.”
(x) The plaintiff was asked as to whether she had been fishing since her injury.
A: I might have gone but I know that the consequences I was – yep, it really affected my back.
Q: How many times have you been fishing since you suffered your injury?—
A: Not even a handful – not – maybe once, I think, twice – maybe more. Just once, and I realised I couldn’t do it.
Q: So you think you’ve been once?—
A: Could have been once.
Q: No more than once?—
A: I wouldn’t think so, no.
Q: Where did you go when you went on the fishing trip?—
A: I can’t recall exactly where I went.
Q: Was it in the Bay?—
A: It would have been.
Q: Have you been away for fishing weekend since you suffered your injury?—
A: Not that I recall.
Q: Can you recall a fishing trip when you towed the boat and went somewhere? There were occasions when you and Arthur would tow his boat and go away for the weekend?—
A: I know we have towed been to Lakes Entrance, but exactly when, I think it might have been, gee, early 2000. I can’t remember exact dates. … We might have gone away with a fishing boat but it doesn’t mean I actually went to the boat. His brother has a house. We might have gone to Lakes Entrance at the house but not specifically fishing myself.
Q: Because it would be inconsistent with what you’re saying about your restrictions if you went away with the boat and slept on the boat, wouldn’t it?—
A: I would think.
Q: Yes, it would?—
A: I would think.”
(xi) The plaintiff said that since her injury she had been on an interstate trip to Darwin. When asked what she did there, she responded: “Look around town”.
The plaintiff was asked specifically whether she had travelled to the Kakadu National Park. The plaintiff said that she had taken a coach tour to Kakadu, and was asked:
Q: You took a coach into Kakadu and what did you do at Kakadu?—
A: Had a look around.
Q: And what did that involve?—
A: Having a look in the wild like the park.
Q: And going to waterholes?—
A: There was one waterhole, yes.
Q: Did you swim in the waterhole?—
A: I did.
Q: Did you do anything else when you were in Kakadu?—
A: No. Waterholes, had a look at the National Park.
Q: Did you go rock climbing?—
A: I wouldn’t say rock climbing, no.
Q: What did you do, then?—
A: I just had a look around in the National Park.
Q: So you didn’t go rock climbing?—
A: No the big rocks, no.”
12 The plaintiff was cross-examined as to a dialogue which appears in an entry recorded on her Facebook page dated 17 October 2011 as follows:
“Q: … Colleen Moffat asked the question: ‘Are you brown?’ And then did you make the response, ‘Not really a bit burnt but very hot sweating my arse off, 40 doing Kakadu and we went rock climbing was fun.’A: I do read that, yes.
Q: No, my question is, did you make that reply?—
A: I can’t recall personally if I put it in. It is on my Facebook and rocking climbing I do recall Kakadu was a very rocky park. I wasn’t like rock climbing.
Q: It wasn’t scaling a wall, is that what you’re saying? You weren’t scaling walls by climbing vertical walls?—
Q: So are you saying that you were doing boulder hopping across big rocks to get to waterholes?—
Q: What did you mean when you referred to rock climbing?—
A: I think it was just – like the postcard, how can I put it, the – what’s the word, the surroundings it was rocky on the ground.
Q: Really – rocky?—
Q: Rock climbing?—
A: Like rocky, the ground was like rocky.
Q: But rock climbing?––
A: But that term does not describe – rock climbing to me I suppose is – – –
Q: But they’re your words aren’t they?—
A: But I did not do rock climbing.
Q: Are they your words?—
A: They’re my Facebook page but did I put them in, look I really can’t recall three years ago exactly what I entered on my Facebook page but I’ve never done rock climbing.”
13 When further pressed as to whether she had made the above entry the plaintiff responded:
“Possibly I could, I can’t recall exactly, three or three years ago, three and a half years ago what entry I would have made but I did go to Darwin for three days.”
14 The plaintiff was cross-examined with respect to the number of further entries appearing on her on her Facebook page. She was taken to an entry dated 21 January 2010 which contained the following caption:
“Hey everyone, been away to Lakes Entrance, we took off for five days, hooked up the boat and off we went, time out and relaxed. Slept in the boat on the Tambo River. It was great, and of course I caught the biggest bream fish 44 cms, I told Arthur I should be called Lisa [Rex] Hunt, minus the kissing of the fish.”
15 The plaintiff did not deny making the entry but neither did she accept that she was the author of the entry, commenting:
“I’m trying to think back only because of what was happening with my father.”
16 The plaintiff was asked:
Q: The last fishing trip you made to Lakes Entrance, did you sleep on the boat?—
A: Oh we did in the year 2000 I remember we slept on the boat.
Q: The last fishing trip you made to Lakes Entrance, do you recall sleeping on the boat?—
A: No, I can’t remember.
Q: But it’s possible?—
A: I honestly can’t remember if it was.”
17 In response to a question directed to the plaintiff from myself as to whether she recalled having made this particular entry, the plaintiff responded:
“I honestly can’t remember the entry, I think because of the timing – I can’t.”
18 The plaintiff was taken to a further photograph from her Facebook which depicted her with her uncle in the course of his visit from Greece. The plaintiff was asked:
“Q: There was a reference to you doing a lot of walking because your uncle from Greece was visiting?—
A: I know my uncle did a lot of walking while he was here.
Q: And we have a reference to you saying you had done a lot of walking because he was visiting?—
A: I can’t recall how much walking I would have done with him.”
19 In response to a question as to whether another entry on her Facebook as to activities which she had undertaken with her niece and nephew was made by her, and whether there was any reason for her to think that it was not made by her, the plaintiff responded:
“I can recall once we had an outing with a couple of girls and everyone’s phones became available and everyone was jumping on putting ridiculous comments. So it’s possible that anyone could grab my phone and made comments. It’s been done in the past.”
20 Having regard to the fact the relevant entry was made via the plaintiff’s mobile phone at 8.18 am at a time at which the plaintiff was out with her niece and nephew, the plaintiff was asked:
Q: “You weren’t out and about with girlfriends?—
A: I wouldn’t have been out and about with girlfriends. I could have had a girlfriend over visiting. I can’t recall exactly.”
22 Video surveillance was then shown to the plaintiff which depicted her sweeping her driveway and bending to collect material to place into a wheelie bin. The film was stopped at one stage and the plaintiff was asked whether she was sweeping with a broom:
A: “It must have been a broom.
Q: Yes, a large outside broom?—
A: Oh, a light broom, I’m not sure which broom but it looks like I could have swept a few leaves off the – – –
Q: Are you saying you were using a small inside broom?—
A: I’ve got like a soft inside broom.
Q: So is that what you were using there?—
A: I can’t recall what broom I was using. I can’t see the broom like – – –
Q: Can you not remember it was on 13 January this year?—
A: I can’t recall what broom but I do have two brooms outside in the garden.
Q: Would you agree you were repeatedly squatting and bending down at right angles to your legs picking things up?—
A: I was picking something off the ground yes some kind of leaves or – – –
Q: Do you agree you were squatting down repeatedly?—
A: Squatting, I was picking, squatting? I was picking up items off the ground – – –
Q: With a dust pan and brush you were picking things up?—
A: It’s what it appears to, yes.
Q: And you were putting them in a bin, were you?—
A: It would have been.”
23 Further video was then shown to the plaintiff which clearly depicted her employing a large outside broom and repeatedly moving either by bending her back or squatting to collect material and place it in a wheelie bin.
Read the full article here: http://aworkcovervictimsdiary.com.au/2013/09/important-info-that-any-injured-worker-should-know/
8. Frequently asked questions bout workcover surveillance
Will a workcover investigator really follow me?
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.
How will a private investigator track me?
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.
Will private investigators look at my Internet activity?
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!
Why do insurance companies perform these surveillance investigations?
Workcover insurance companies will tell you that they perform these investigations to stop workcover 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.
What can I do to protect myself from private investigators?
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.
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
What are the most important things I should know about workcover surveillance?
As an injured or ill worker, there are basically six (6) important things you should know about workcover surveillance:
- 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.
- 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.
- 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.
- 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!
- 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.
- 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.
Where can I find more information about workcover surveillance?
There are heaps of articles on our site related to workcover surveillance and private investigators, you can find them under the tag ‘surveillance’ (sidebar tags) or conduct a search with typing in the keyword ‘surveillance’ or ‘private investigators’ in the search box (top of page in menu).
- How they use surveillance in workcover claims
- Followed by a workcover private investigator?
- Some IMEs undertake surveillance – watch out
- Surveillance evidence is generally of limited value, but causes substantial harm to the injured worker
- Workcover surveillance: filming longer to avoid ‘good day bad day’ argument
- Workcover and Private Investigators: the truth
- A workers compensation private investigator tells it all
Is workcover surveillance legal?
- 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
You can find more information about what private investigators are allowed to do and what they are not allowed to do, as well as the Code of Conduct on our 'Learn about workcover surveillance" page.
Do Private Investigators need to adhere to a code of practice in Victoria
It is important to highlight that the private investigators hired by workcover insurance companies are bound by a code of Practice and are not allowed to trespass private property. The WorkCover Authority (VIC and all states) considers that surveillance of an injured worker is a legitimate tool for management of a claim, however, the WorkCover Authority (VIC) does issue a code of practice to its private investigators under which they are expected to operate.
Am I allowed to secretly record appointments?
Each State and Territory has legislation on surveillance and listening devices (see below).
As a general rule, if a person is not a party to a private conversation, that person is prohibited from secretly recording or using a device to listen to that conversation.
On the other hand, if a person is a party to a private conversation, there is an interesting divergence in the law for different States and Territories.
In Victoria, Queensland and the NT, a person who secretly records a private conversation to which that person is a party does not appear to be in breach of surveillance legislation. On the other hand, legislation in WA, SA, ACT, NSW and Tasmania expressly prohibits such conduct.
Note that publication or communication of any recording of a private conversation is prohibited in all jurisdictions. Save for in NSW, there is an exception for publication or communication made in the course of legal proceedings.
The position in each state as to the legality of secret recordings is summarised in the table below.
|State/Territory||Relevant Surveillance Legislation||Lawful to secretly record a private conversation to which you are a party?|
|Victoria||Surveillance Devices Act 1999 (VIC)||Yes|
|Queensland||Invasion of Privacy Act 1971 (QLD)||Yes|
|NT||Surveillance Devices Act 2007 (NT)||Yes|
|WA||Surveillance Devices Act 1998 (WA)||No|
|SA||Listening and Surveillance Devices Act 1972 (SA)||No|
|ACT||Listening Devices Act 1992 (ACT)||No|
|NSW||Surveillance Devices Act 2007 (NSW)||No|
|Tasmania||Listening Devices Act 1991 (TAS)||No|
9. Additional Reads about workcover surveillance and private investigators
- I was a private investigator, spying for insurance companies. Here’s what I found
- Private Policing of Insurance Claims Using Covert Surveillance
This article (paid $37) presents the findings of an examination into private policing of surveillance in injury claims. The article examines the main assumptions in academic and legislative discourse relating to the regulation and control of surveillance within an insurance claim environment. The data is based on Australian 378 insurance claims where the insurer considered undertaking surveillance. The article describes and analyses the results of covert optical video surveillance of claimants in Australia. Specifically, it documents the use of surveillance by insurance companies more as a claims management tool rather than as a means of gathering evidence for future criminal fraud prosecutions. See: http://www.tandfonline.com/doi/full/10.1080/19361610.2013.794406#.UdPB8dhmMfw