Recording independent medical examinations and workcover telephone conversations

secret-recording-workplace

Yesterday a very kind injured worker shared some very useful information with us regarding the Surveillance Devices Act 1999 (VIC) which stipulates when you can and can’t secretly or not record conversations, particularly in the context of the dreaded independent medical examinations.

Following previous  advise we have received from Atlas Legal AU, we’re taking the opportunity to summarise under which circumstances injured workers, and those who may be experiencing severe bullying and harassment may use a recording device to record for example an independent medical assessment, or a “work-related” meeting (with the bully), or a telephone conversation with for example, a “difficult”, inappropriate or even harassing workcover case manager.

Recording independent medical examinations and workcover telephone conversations

The injured worker’s story

I have been on Workcover (Victoria) for the last (x) yrs due to a [psychological] injury at my work and can relate to so many of the stories that I have read on your site.
Thank you so much. Its has been a tremendous support and validation.

I truly understand the powerlessness that workcover victims feel held hostage to a system that is so adversarial and schizophrenic.

In an effort to empower myself I have been looking at this site for advice and have noticed that there are many instances where it is recommended to record such [independent medical examination] appointments.

I too have had IMEs that have misrepresented what I have said and much more in their reports.

So I looked into the Victorian legislation regarding this and have found something of interest that maybe useful to you and your audience.

Surveillance Devices Act 1999 – SECT 11

Prohibition on communication or publication of private conversations or activities
11. Prohibition on communication or publication of private conversations or activities

(1) Subject to subsection (2), a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both; In the case of a body corporate, 1200 penalty units. Note Section 32A applies to an offence against this subsection.

(2) Subsection (1) does not apply-

(a)   to a communication or publication made with the express or implied consent of each party to the private conversation or private activity; or
(b)   to a communication or publication that is no more than is reasonably necessary-
(i)   in the public interest; or
(ii) for the protection of the lawful interests of the person making it;
Here is the link to the complete act…..
http://www.austlii.edu.au/au/legis/vic/consol_act/sda1999210/

The injured worker, who shared this information, goes on to write that…upon reading this it seems reasonable to me that not only doesn’t one have to inform the other party that they are being recorded (although one can do that as an option) but that a conversation can be recorded secretly if one deems it reasonably necessary in the public interest and or for the protection of ones legal interest.

Seeing as Worksafe and their workings are of a public nature and these IME apps are made with the precise intention of making legal judgements about someones ability to either work, receive compensation etc, it seems to me that such recordings whether secreted or not are actually quite legal under this act.

This may come in helpful when challenging erroneous reports and decisions such hired guns make that insurers jump on to mitigate their liabilities.

If put into practice on a wider scale and it becomes known, it may have the effect of not only empowering very vulnerable workers but also keep the IMEs and the insurers accountable and maybe more honest.

Of course I am no lawyer. I am sick but I’m not dumb ( something that the insurers seem to equate) and have looked into my rights on this subject for a little while. I really hope this info can be of some constructive use but I would like your feedback if you want to pass it by Atlas or Shine or whoever you deal with. Remember this is just a Victorian Act so only applies here in Vic.

Please let me know what you find out about this.

Thanks

Advise from Atlas Legal AU re recording conversations

Recording IME assessments, or recording your case manager on the phone

Obviously we, a workcovervictim, have asked this question quite a few times.

Atlas Legal Au told us a while ago that you do NOT require the other side’s authorisation, what you do require is their KNOWLEDGE that a recording is being made.

So long as you tell them that you intend on recording a conversation and it is in clear terms then you are covered. If they choose not to have a conversation with you AFTER you have told them you intend on recording the conversation that is their prerogative. If they say, “I don’t want it recorded” and you reply, “Well that’s too bad I am still going to record any conversation we have,” and they continue talking with you and you record the conversation you are covered.

Note: Think about it- how often do you hear ” your call may be monitored and recorded for the purpose of quality improvement/whatever”, when you ring your workcover case manager, or ring the WorkCover Authority? Yeah, well, simple, all they’re doing is covering their a*rses by ensuring you are AWARE that you may be or are being recorded, simple as that.

More useful but general advise from Atlas Legal AU re bullying, harassment and collecting evidence

Work Place Bullying and Harassment still continues to this day even after “Brodie’s Law” has been implemented in the State of Victoria.  We should not and will not forget that beautiful young lady (Brodie Panlock) and her loved ones.  Especially after her young life was cut, so tragically short in the prime of her life, in an absolute tragedy, which should never have happened, and in one, which could and should have been prevented.  The treatment by those less than human individuals (calling them animals would be an insult to animals) should never have happened.

Whilst those less than human individuals continue on with their lives, they have caused immeasurable pain and sorrow to young Brodie’s loved ones.  Who will have a void in their lives until their last breath.  They will always be questioning themselves, why didn’t we see the signs? Was there something we should or could have done?  They will live lives of torment and torture for no other reason, other than that those less than human individuals just wanted to have some of their sick so called fun.

We do not have to tell the members of this web site, that even though Brodie’s law has been implemented, it appears to us that complaints regarding harassment and bullying are not effectively investigated and or enforced.  Those Statutory Authorities that have been tasked, trusted and relied upon to investigate and enforce these laws must be held to account.  They must be forced if not willing to undertake their statutory duties (on behalf of all citizens in the community) in a professional and effective manner, without adding insult to injury.

Psychological injury, whether it be clinical depression, anxiety, Post Traumatic Stress Disorder or any other injury of the mind, unlike physical workplace injuries, are difficult to investigate and even more difficult to prove in a Court of Law due to the Rules of Evidence, Statutory provisions and or case law.  All workers need to be reminded of, and if not known, taught their rights under the law.  It is all too late after the fact, that is, if the damage is done and then you later try to prove your case in court.

If you believe you are the subject of harassment or bullying, AND you suffer a psychological injury as a result of the harassment or bullying, you need to be able to prove your case in court.  Now Court processes in Australia are in no way similar to what people see on American TV shows.  You may believe that is a given and a stupid thing to point out, but you would not believe the amount of people we come across that ask us questions about things like, a right to a phone call and “Miranda Rights.”  If you do end up in Court, you need to be able to prove your case in accordance with Australian laws and processes.

Having said that, proving your case in court is not a simple matter of sitting in a witness box, and trying to remember all the various incidents that caused your injury.  Just YOUR WORD in the witness box may not and usually is NOT enough to establish your case.

You will need detailed information.  If you believe you are the subject of harassment or bullying we would suggest that you keep a detailed diary, of incidents, times, dates, locations, all the “He Said, She Said” details word for word.  You should write these details down in your diary as soon as possible after the incident has occurred.

Do not forget to include all the details of any witnesses to the incident and their contact details.  Collating “Evidence” for Court purposes is NOT an easy task and must comply with certain restrictions.  People need to be educated in the fundamentals of how to gain valuable information that can be used as “Evidence.” Not all information available to you can be used as evidence for various reasons.  We don’t want to go into the nitty gritty and bore you with details, so we have given you a very basic method of collating information that may well be used as evidence, by way of keeping a detailed diary.

We would strongly recommend that you not do anything illegal in attempting to obtain information and or evidence.  For example, secretly recording conversations by way of electronic methods such as hand held tape recorders in your pocket without the other side’s knowledge. Under certain conditions, recording somebody without their knowledge is against the law and you may find yourself facing possible criminal charges.
However, you do not need the other person’s consent to record a conversation.  That is if you make the other side aware that it is your intention to and that you will be recording the conversation as a way of keeping an accurate record of that conversation, in electronic format, it is NOT a criminal offence.  If the other person chooses not to have that conversation after you have advised them it is being recorded, then that is a matter for them.
In short, if you are called into a meeting about your complaint, its investigation, or work performance as a result of you lodging a complaint about harassment and bullying you are entitled to electronically record any such conversation so long as the other side is aware that you will be recording the conversation.
As we mentioned in our recent article entitled”Rude, hostile, biased & inhumane independent medical examination doctors & how to complain, The same goes with Doctors and or specialists.  Time and again, insurance company doctors and specialists treat injured workers with disdain and contempt. If you wish to do so you should be allowed to electronically record everything that is said in your consultation with that Doctor.  That is the most accurate way to keep a record of what was said during the consultation as well as a way to make sure that the Doctor remains professional and courteous during your consultation.

There may be rare occasions where you may be able to record a conversation without the other side’s knowledge.  That is stepping into a dangerous area of the law, and you may risk criminal sanctions.  As an example of a rare occasion where it may be permissible to record somebody without their knowledge is, if you believe that you will have criminal allegations made against you by a party and in order to protect yourself from incrimination, you may be entitled to record your conversation without the other side’s knowledge.

Atlas Legal Au made it also very clear that this message in general terms is to thank the administrators and persons responsible for this website and to provide some small element of guidance in relation to making sure you can prove your claims.  Laws in relation to these matters, whether it be personal injury, court processes, or evidentiary change from State to State in Australia and again more so internationally.  So in short make sure you have competent legal advisors in your home jurisdiction if you believe you are the subject of bullying and harassment.  Moreover, to make sure you obtain the best evidence possible without contamination of that evidence.

So if you want specific legal advice on your specific situation, you will need to contact a legal advisor (lawyer) within your HOME JURISDICTION  (your state) that has professional knowledge and competence in this area (i.e bullying, harassment and how to further collect evidence).

 

tipView all our articles related to recording>>

View our privacy law resource page>>

 

 

[post dictated by workcovervictim and manually inserted on behalf of workcovervictim]

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tony
Guest
thank you guys so much for your replies I think what has hurt me more that the pain management clinic didn’t even have the manners to communicate with me what happens when you get a rejection from the insurance comp they just dumped me and when I asked why they just spoke to me like I was dirt another thing was I went to a compound pharmist close to where I lived instead of going to theirs which was was on the other side of Melbourne this doctor slamed the phone down when he found out he has a other… Read more »
Money Not People
Guest

@ Tony, I dont know your financial position but I would fund the medical procedure myself and at the same time proceed to Conciliation to force the insurer to pay.  If you are unable to fund the procedure and Medicare wont pay, then I would go to Conciliation and ask for an expedited hearing.  Conciliation hearings usually take place within 5 weeks of you lodging the documents so I would get on to that quickly and then have medical opinions from your treating doctors how the proposed procedure is necessary.

Money Not People
Guest
@ Tony, the IME doctors are also covered by legal “no fault”.  This means that for example, you are taking heart medication and IME says in a report you dont need it anymore so its stopped and you have a heart attack the IME doctor is not liable for any malpractice.  So these IME doctors can write whatever they like, get paid about $1,000 for their report and have no liability whatsoever for what they have written. So you treating doctor gets the IME report which will be written by some big-shot doctor and might feel intimidated or pressured into… Read more »
R
Guest
Hi Tony, I am so sorry to hear that you are in so much pain and nothing is working as yet.  I also totally understand that you believe as I did that people take care of you on workover, especially not knowing anyone who has been through the system, and only seeing glossy brochures of all the propaganda that workover publish and give to you when you are injured.  Well welcome to this amazing system from hell. If you have had a rejection from and IME you have the right to appeal in Vic it is the ACCS.  Unfortunately our… Read more »
tony
Guest

don’t go to metro spinal clinic the service is crap

tony
Guest
hey guys I feel so upset and need to vent been going to a pain management clinic had two nerve blocks didn’t work doctor recommened another procedure but the insurance refused cause of their ime report so I rang doctor spoke to his nurse doctor will be incontact 2 months pass I rang again oh no we don’t contact you when you get a rejection this is how we do things here no body told me or explained this to me I feel like I have just been dumped his nurse spoke to me like shit and said its up… Read more »
Pauline Pope
Guest
Thanks Xchangingvictim, I appreciate your offer. At the moment I’m ok, have had the same friend going with me to all these Conciliations as I want a witness to the whole process, and I need the mental balance that comes when I feel supported and am familiar with the terrain I’m operating in. I’m trying to spread knowledge of the viciousness, unfairness and total ineffectiveness of the system outside the pond that we injured workers are trapped in. I’m trying to get retrained in a fair and just manner, whilst strongly suspecting ing from past experience that the system will… Read more »
Money Not People
Guest

I consulted a barrister in Victoria about recording an IME without telling the doctor and it is fine.  You DONT need to tell the IME you are recording the assessment.

Waz
Guest

Hey, Which Barrister told you this? I would like to get some solid advise on this too.

Cheers,

Workcover Victim.

Pauline Pope
Guest
Thank you for such timely and wise advice. Seems I can rely on you Poo to pre-empt my enquiries with just the right advice. I’m going through Conciliation and feel at a real disadvantage as I’m often unable to remember what happens. I want to record the sessions, have requested to be able to do so, and ACCS denied my request. I’m feeling that my impairments are not being accomodated in this decision. I wanted to raise it again at the start of our last Conciliation session, but with it being half an hour late, and totally chaotic because of… Read more »
Xchangingvictim
Guest
Pauline I think you can go to the ACCS and tell them you want to record the session because the insurer has the right to record your private life (and they already did it) and that you most probably will go to the Court so you need EVIDENCES! If they refuse tell the ruler to have his/her refusal on the Court paper. I don’t remember if you may bring someone with you, if so I’m happy to be there and support you with recording and taking notes. Remember that the ACCS has no enforcing power SO the insurer will send… Read more »