Many injured workers feel they are being punished because of their work injury. We were often told that injured workers feel they are treated like criminals, that they felt like “bandits”. One of the reasons given for this relates to the activity of private detective/investigator agencies hired to conduct covert surveillance of the injured worker.
There is also no doubt that covert surveillance of injured workers is damaging both to their physical and mental health.
Surveillance of injured workers – reasons and damaging consequences
Why are injured workers put under surveillance?
Injured workers are followed in order to obtain evidence allowing the workcover insurer, the employer or the workers’ compensation authority, to contest or deny compensation benefits.
Sometimes the surveillance is designed to obtain evidence for use in court, tribunal, arbitration hearings or medical panel or IME opinions; at other times it is simply (and frequently) used as a bargaining tool in order to encourage an injured worker to accept a (low) settlement or to drop his/her claim.
Most instances in which video-surveillance reports are put into evidence involve one of two issues.
- Quasi-criminal activity : In the occasional case, injured workers are suspected of working while receiving benefits for total incapacity, or while receiving other forms of benefits that would not be payable if they were known to be working. These cases more closely resemble what could be described as quasi-criminal activity, where the injured worker is receiving benefits in circumstances comparable to fraud, but they are rare. Contrary to popular belief, workers fraud represents about 1% (or less) of all workcover fraud. Stigmatisation of injured workers as “all fraudsters and system-milkers” is indeed the result of countless derogatory comments about them in the media and by politicians.
- Alleged exaggeration : In the majority of cases however, the video-surveillance aims to show that the injured worker’s physical or psychiatric condition is less serious than s/he has lead the insurer (or the employer) to believe.
Workcover insurances seeking to deny benefits or to punish the injured worker basically hopes to show by video-surveillance evidence that the injured worker could, for example, drive a car, lift her child, remove groceries from a car, wait for a bus while standing, bend his/her elbow or walk without a limp.
In one such recent case, the purpose of the workcover surveillance was simply to demonstrate that a severely injured worker who was seeking compensation for profound, major depression and agoraphobia, and who had stated she could “not leave her house”, had, at least on one (1) occasion, left the security of her home and that she was not seen on the surveillance videotape to be cowering or crying – indeed WTF!
Workcover’s official reason for conducting surveillance
Aside from the overt rationale for following injured workers, it is clear that workcover authorities and their agents see private surveillance to be a “good management practice to incite all workers to behave“.
We certainly have the feeling that workcover authorities and their agents (or even some employers) simply don’t want their injured workers to be “too comfortable” while they are receiving workcover benefits. To make the experience (extremely) unpleasant is – allegedly- to contribute to the reduction in future claims. Many injured workers, indeed, abstain from claiming because of such disgusting tactics.
The decision to target a specific injured worker
Private investigators are hired by the workcover authority of agent to follow up on an anonymous tip
Although the general motivation for insurers in hiring a private investigator is always to check up on the injured worker’s “behaviour”, at least two sets of circumstances lead to the decision to target a specific injured worker.
In some cases, the workcover authority or agent has received specific, sometimes anonymous, tips regarding alleged fraudulent behaviour on the part of the injured worker. This can be a (disgruntled or jealous) co-worker, a neighbour, even the employer.
Some workcover authorities and their agents even have web-sites inviting anonymous denunciations, a type of snitch line analogous to Crime Stoppers or other public services designed to catch “criminals”.
Private investigators are thus hired to follow up on an “anonymous tip”.
Other (often unfounded) reasons:
The workcover insurer may also target an injured worker for “other reasons”. Among the reasons stated are alleged difficulties in contacting the worker by phone, lack of co-operation in rehabilitation and return to work attempts. If relations with the insurer (or authority) are conflict ridden, surveillance is apparently also more likely to ensue. Quite a few injured workers have told us they felt that surveillance in specific cases was sometimes used as punishment or revenge for having stood up to the claims agent. In many such cases, surveillance -ironically- commenced after the injured worker had complained about the attitude of the case manager or the tardiness of his weekly pay, or after an argument with workcover authority or it’s agent’s staff.
Surveillance is also often initiated because the claim was/is a particularly costly one given the gravity of the injury. We understand that videotape evidence could – indeed- be an investment to reduce the eventual cost of the claim.
Two recently reported cases to aworkcovervictimsdiary illustrated this point, in the sense that the injured workers subject to surveillance were without question severely disabled because of a workplace accident.
In one case, an injured worker had been electrocuted and had suffered severe burns to his body and severe sensory difficulties and sequelae, as well as documented severe depression.
In another case, the workcover authority itself had recognised over 48% permanent disability/impairment and had undertaken surveillance of a profoundly depressed injured worker who had suffered an acute and horrible injury which severely limited the use of his left arm and hand. The injured worker told us he had told his case manager “he couldn’t move it at all”. Needless to say that subsequent surveillance evidence where this injured worker is seen to be moving his hand was obtained and used to try and convict him of -yes- exaggerating and malingering! The insurer then also tried to use this evidence as proof that he was capable of working, despite a vast amount of medical evidence to the contrary. The injured worker was in constant severe pain for which morphine was prescribed. However the insurer contended he could work as a security guard (!), but the court, thankfully, and in spite of the video evidence that he could move his arm, and in light of the enormous medical evidence, concluded that the injured worker was indeed totally disabled because of his injury. Still this poor injured man was cut off weekly pay and suffered enormous additional stress whilst awaiting a court hearing.
Literature and case law describing use of covert surveillance on behalf of workcover insurance companies shows that targeted injured workers have usually been receiving benefits for a long time and are often claiming for long-term permanent disability for disease(s) that are difficult to document on the basis of objective medical tests – i.e. severe psychiatric injuries, severe pain syndromes etc.
In contrast, quite a few genuinely injured workers reported to us that surveillance was instituted very rapidly after the initial claim. In one such case, surveillance was started simply because the injured worker’s back injury had taken more than eight weeks to heal!
It is important to highlight that the private investigators are bound by a code of conduct 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 does issue of code of conduct to its investigators under which they are expected to operate. Click here for PDF document Code of Practice for Private Investigators. For more information see our article “Workcover private investigators must adhere to Act and Code of Conduct”
The legal surveillance strategies are the ones that are more likely to be the object of judicial or quasi-judicial decisions. Following an injured worker from the outside of his or her home to other public places, on several days at varying times, without editing the tape, is seen by most courts as (potentially) legitimate.
Filming the injured worker in his back yard or on his front steps is not uncommon, and is sometimes held to be legal, sometimes not.
Filming the injured worker picking up his or her children at school, by car or on foot, waiting for a bus, riding a motorcycle (or actively working) are common.
Pathetic private investigators
However, even when surveillance strategies appear legal, the “enthusiasm” with which private investigator undertake their mission is sometimes extremely troubling.
We were recently provided with copies of 3 reports by a private surveillance firm, reports submitted to the private investigator’s client (workcover insurer), and to the injured worker (via FOI). The reports cover an 8 week period.
In the first report the PI praises the workcover insurer for choosing to target the particular injured worker, as
“[the injured worker’s family name] have a very large family out there and they are always into something. I can almost guarantee you are correct in questioning this workcover claim”
Over several weeks the PI failed to identify any “inappropriate” activity on the part of the injured worker, and he actually becomes increasingly frustrated at his failure to find anything suspect!
“There is more movement from people coming and going than there is for him (sic)…I do not seem to be having a great deal of success with this investigation. So far I have spent about 14 of the hours you approved watching this guy’s place and all I have on him is a couple of trips to the local corner shop.”
Nevertheless the desperate wannabe-cop PI suggests to the insurer surveillance be continued:
“…I noticed that he uses a stove with wood so he will also have to start looking for [the winter’s] supply of firewood very soon. I am in the area a lot anyway so I will keep an eye (overall) on his place at no charge to you. If he is there or if he is doing something then I will start the clock on your time and stay on this guy.”
Illegal surveillance strategies
Among the more outrageous surveillance examples that we were made aware of, 2 manifestly illegal surveillance strategies were reported.
Filming or video-taping the injured worker in his or her home without consent, and entrapment, provoking the injured worker to do something s/he would not normally do were it not for the behaviour of the PI.
Surveillance in the injured worker’s home
In one such a sick case, an injured worker was filmed in the intimacy of his own bedroom. The video was actually submitted to a medical panel, the injured worker was filmed making love in his bedroom! How sick is this?
In other case the PI entered the injured worker’s home, which was for sale, pretending to be a prospective buyer
In another case, an injured worker’s wife rented rooms out of their home. The injured worker discovered, via FOI, that a private investigator had entered their home pretending to want to rent a room, had filmed him going about his day at home and had secretly questioned and taped his wife with regard to sharing of household tasks!
Entrapment by private investigator
Entrapment, although illegal, is also not uncommon. An injured workers’ advocate told us of more than one case in which an investigator deflated the tires of an injured worker’s car to see if s/he would stoop to change his tire. They understood what was going on when the neighbour of one of the (2) workers informed him that a strange man was seen letting air out of the tire of their car. This practice seems fairly widespread.
Another way of entrapping injured workers is to leave money lying near their car door , or in their driveway, so as to film them bending down to pick it up
Sometimes entrapment takes place when the private investigator overtly asks the injured worker for help. In the parking lot of a local shopping mall a woman asked the targeted injured worker to help her carry heavy grocery bags. The injured worker initially apologised, saying he could not because he had a sore, bad back. The woman PI insisted, saying together they could move it easier and safely. The injured sod fell for the trap and was filmed. The PI woman even apologised for setting him up, saying she had to “earn her living”.
For more outrageous surveillance tactics including entrapment, see our article “Workcover and Private Investigators: the truth“
Filming injured worker’s family members, friends, even kids
Even in those cases where videotape surveillance evidence is obtained legally, many injured workers were provided with their own videos in which several members from the injured worker’s family, including children, were seen in the videotape, sometimes where the injured worker was not even present!
Aside from the questionable legality of such practices, given that the privacy rights of family members can not be presumed to be relinquished simply because there is an injured worker in the family, such practices can have particularly damaging consequences.
Kids and spouses may share in the stress of being followed. Even if they don’t, we were told of cases where the injured workers themselves may feel even more violated and at the same time guilty, when their claim has exposed the whole family to secretive surveillance.
Not long ago, we received a disturbing email from an injured worker’s spouse regarding the manner in which workcover surveillance was conducted on at least two occasions. The rightly bewildered spouse writes that “they have captured other family members including young children in their footage (in the same screen shots as my injured spouse). They have also recorded my (the uninjured spouse) daily movements alone with my child in surveillance logs.” Whats perhaps most disturbing is that surveillance was even conducted on the day of their toddler’s birthday party with children arriving (just before the 130 week mark (in Vic). The writer states that (this surveillance) is just “creepy and just wrong on so many levels!
The DAMAGING effect of private policing of injured workers
Injured workers, their representatives and case law all often describe how such strategies lead to or aggravate psychiatric disability, including paranoia.
A psychologist specialised in workover claims described to us the effect on her patients of secretive surveillance:
“Contrary to lay belief, videotaped surveillance usually carries little probative value when it comes to injured workers and yet I am personally aware of at least a dozen cases where injured workers fates have been adversely effected by surveillance. Once the injured worker is aware of having been videotaped (often for weeks) they become withdrawn, agitated, and contrary to their best health interest or doctor’s advise, unwilling to undertake their normal, limited duties of daily living, i.e. limited gardening, rubbish removal, shopping, short distance driving, walking etc”
In the words of an injured worker’s lawyer: “It continues to amaze me how deeply it hurts people to know that they have been surveilled. Even if the benefits don’t get taken away, injured workers are really cut to the bone by being videotaped.
A GP described the effect of surveillance and harassment on his patient who had suffered a severe traumatic injury including third degree burns to a significant percentage of his body:
“[The patient] felt harassed by the workcover (insurer) who “slashed at the core of my being, treating me as if I were a fraud.” He became hopeless, felt worthless and had suicidal ideation. He stated that he cried a lot but then talked to God, his wife and a special friend.”
An injured woman who was filmed by a private investigator hired by the workcover insurer was seen in the video walking down the street with a young child. She learned she had been the subject of surveillance when she received the video in the mail. She describes how the experience made her feel:
“I felt really bullied. They have no right to come into my private life like that! I feel cornered, like in a mousetrap, treated like an object.
Not only am I in pain I’m also spied on. For a week I kept looking around to see if I was being watched. Do we have to stop moving because we’re receiving benefits from workcover? They want me to feel guilty because I receive a little weekly pay, but I didn’t choose to have a severe back injury. If they only knew what I would give to be able to go back to work…”
For example, a severely injured worker suffering from both painful physical injuries, severe disfigurement and severe post-traumatic stress disorder (PTSD) was encouraged by her GP to try to leave the security of her home, despite her disabling fear. She finally went out (on Valium) and walked around the block, and was subsequently confronted by videotape evidence that she was “capable of going out”.
Lawyers have also emphasised the potential perverse effect on injured worker struggling to overcome their disability while at the same time having to cope with the fear of being tailed to prove they are less disabled/impaired than they claim.
The value of surveillance
Many decision makers, as well as medical experts, and even courts and tribunals, underline the fact that it is often difficult to extrapolate from surveillance evidence that an injured worker has performed a given task, like lifting her child or mowing the lawn, to determine that he or she is capable of assuming regular gainful employment. Some underline the futility of such evidence, letting it be understood that investment in covert surveillance is not necessarily money well spent.
Figures obtained by Freedom of Information show that in 2010-11, WorkSafe spent $13.7 million watching 6675 people claiming benefits. The cost was more than $1.2 million above the previous year’s bill for watching 6217 people, but it prosecuted just 18 cases of fraud.
If the videotape evidence is selective, if the tape has been cut or does not reflect a full day’s activities, some courts and tribunals question its admissibility while others, while admitting the evidence, limit its weight.
Not long ago, we were provided with a couple of incidents where the surveillance video itself had been tampered with.
One health care professional who provided us with information added “I personally have reviewed 4 sets of videotaped data, none of which were in my view as a psychologist, probative of medical malfeasance. [Insurers], Medical Advisors, IMEs and the like, however, seize upon the tapes as evidence of alleged malingering on the basis of selected portions of the videotapes. Of the tapes I reviewed all of them showed evidence of editing, including figures under surveillance curiously moving backwards and in some cases snippets of the tape repeated several times.
Many judges warn against giving too much weight to this type of evidence, as the film does not show rest periods or periods in which the injured worker is visibly in pain.
This point has also been made in several legal cases we published.
If the nature of the injured worker’s illness/injury leads to fluctuations in his ability to perform the tasks of daily living, videotape evidence over only a few days has been held to be of limited value, as it is possible that the injured worker was filmed on a good day that did not necessarily reflect his general state of health.
Aside from what the videotape actually shows or does not show, a further (ab)use of videotape “evidence” is related to the general credibility of the injured worker. Even if those activities demonstrated in the surveillance tape are banal, the videotape may be damning to the injured worker if s/he has been “caught exaggerating or lying” to, for example, the employer or the workcover insurer or the medical panel.
Thus, for example, even if the injured worker was not doing anything wrong, but simply waiting for a bus, lying about the fact she was capable of waiting for a bus has been used to tarnish her credibility on all issues relevant to her claim. The injured worker is then- of course- more amenable to out of court settlements.
There is no doubt that covert surveillance of injured workers is damaging both to their physical and mental health. In many cases it is also a violation of their right to privacy and to their right to dignity.
The widespread recourse to covert surveillance of injured workers is damaging to the health not only of those workers who are subjected to surveillance but also of those who refrain from attempting any activity, regardless of their doctor’s recommendation, for fear of being video-taped by a private investigator.
[Post dictated by workcovervictim and manually transcribed on behalf of workcovervictim]
Many more workcover surveillance articles can be found using our “Surveillance” tag, including: