It is our belief that much harm is caused by surveillance and the threat of surveillance, and that its anti-therapeutic effects totally outweighs any limited “probative value” / sufficiently useful evidence to prove malingering, exaggerating etc it may have. Ideally, we strongly believe that surveillance should not be admissible at all, or – at the very least- its use and harmful abuse be limited.
Surveillance evidence is generally of limited value, but causes substantial harm to the injured worker
We believe that surveillance evidence of an injured worker should be considered only as a last resort and should certainly not be routinely admissible, especially when other avenues could have been used instead (i.e. surveillance evidence should not be admissible when a medical examination could yield the same findings).
1.Workcover surveillance: Limited probative value, massively prejudicial
Over the past several years our courts and tribunals have increasingly recognised (in numerous workcover case decisions) that surveillance evidence of an injured worker and especially video surveillance evidence, has limited probative value ( sufficiently useful evidence to prove malingering, exaggerating etc).
The fact that an injured worker can engage in light, discrete, or occasional activity, such as for example lifting a child once, raking leaves for 15 minutes, or bring a garbage bin in, is definitely not indicative of this injured worker’s general abilities/capabilities or level of disability/impairment or pain or mental anguish!
Video surveillance can be extremely misleading as it usually only captures a small snippet of an injured worker’s day-to-day life or ‘detrimental activity’. This is also one of the reasons why workcover insurers are now filming longer to avoid ‘good day bad day’ argument.But mind you they will seldom provide a copy of any surveillance that shows the injured worker unwell/incapacitated.
What is troubling however is that the very nature of video surveillance and evidence is such that it can have a very dramatic impact on the viewer. Be it an injured worker’s treating doctor, an IME, a medical panel or a court.
For example, one of our fellow injured workers had a case where a video recording of him was introduced as evidence in Court, showing him “working in his backyard” for what appeared to be a significant amount of time over the course of one day. However, the video tape was started and stopped so that it did not show the long breaks in which the injured worker was not in his garage. You can guess it, during these breaks, which were not captured/shown on the video, the injured worker was in his bed lying down from severe pain.
Surveillance recordings depict an “air of truth” by virtue of the fact that they are recordings, and supposedly show reality, even though they are only showing very selected aspects of an injured worker’s life for a very small snippet of time.
2.Workcover surveillance has a detrimental impact on injured workers and their families
The negative, damaging and detrimental effects of workcover surveillance on injured workers and their families can’t be understated.
Quite a lot of research in the topic has well documented the harmful and distressing effects that surveillance has on injured workers. The simple but real fear of simply being watched cause many injured workers to decide to avoid engaging in “activities” that have been recommended by their own doctors, such as trying to get out for regular walks in order to improve the injured worker’s health/condition.
The ill effects of surveillance on mental health can be and are often even more serious.
Professor K Lippel refers in her paper “Legal and social issues raised by the private policing of injured workers,” to a quote from a psychologist who specialises in workcover claims/injured workers:
“Contrary to lay opinion,videotaped surveillance carries little probative value when it comes to injured workers and
yet I am personally aware of at least half a dozen cases where injured workers fates have been adversely
effected by videotape surveillance…Once the worker is aware of having been videotaped (often for weeks) they become withdrawn, agitated, and contrary to their best health, unwilling to undertake the normal duties of daily living, i.e. limited gardening, snow removal, shopping and the like “.
workcovervictimsdiary sees and hears see the sick and damaging effects of surveillance on countless injured workers. Below is an extract from an injured worker who was subjected to surveillance, the product of which led the workcover insurer to cease all benefits. The injured worker’s benefits were eventually reinstated after a protracted battle in Court. However, the damaging effects were very profound and lasting.
“…I became severely anxious and depressed and worried myself sick. Anxiety and paranoia was consuming me day and night. I became so isolated and was terrified to go out of the house fearing that I was going to be watched and followed/stalked by some PI. When I had to go out , for example to the supermarket or pharmacy, I would be constantly checking my back all to see if I was being followed.
I developed severe anxiety and phobia, and became claustrophobic. I also avoided crowded areas, and even stopped going to church. I also lost my self esteem. The video surveillance and the ensuing attempt at a criminal charge have demolished my ability to function and to this day…The damage was done…”
Surveillance also affects family members of injured workers, as spouses and kids can (and are often) also be caught on film, and can also experience the ill effects of being watched.
Another injured worker was asked by his neighbour why there was someone at the end of her driveway taking pictures of her house. This was extremely humiliating for the injured worker and her husband and 2 adolescent children.
In her research, Professor Lippel also points out that even in cases where the surveillance evidence is not admissible in legal proceedings, its very existence (of such a tape) can cause injured workers to drop or settle their claims, or even quit their jobs. This means that surveillance is used as weapon or ‘leverage’ by the insurer.
3. Workcover surveillance is often used as an adversarial weapon against injured workers
It is important to point out that surveillance evidence is not something that is available to all parties, because really surveillance can only be ordered by the workcover insurer (or authority) and their client, the employer.The injured worker certainly cannot order or undertake surveillance of, for example, their workplace. Nor can for example, a medical panel or a court order (further) surveillance.
Surveillance is also just about always based on grossly unfounded assumptions about injured workers. It is based upon and perpetuates injured workers’ stigmatisation as liars, malingerers and cheats.
The workcover insurer (and employers) can and often will order surveillance of an injured worker when they dispute the existence, nature or the extent of an injury. They can follow them outside of the home, and in doing so avoid privacy issues.
But interestingly, injured workers who dispute for example the suitability of the modified work offered, especially when the job on paper is significantly different from what is expected in practice, are not allowed/able to order surveillance in the workplace. What about injured workers who may want or need to show that the nature of their job duties is linked to their disabilities/aggravation of injury? Injured workers are not able to undertake surveillance -let alone submit the evidence- of their workplaces because they are considered “private premises”. Injured workers can’t videotape the workplace or ask a colleague to do so as it may put their current and future employment at risk and is usually considered illegal by employers. Ever thought about this?
Care is needed in accepting surveillance evidence as a fact
We believe it is also worth emphasizing that the standards for investigators (i.e. PIs) are virtually non-existent. We have captured many such illegal activities by Private Investigators, desperate to catch the injured worker.
This very issue was also examined an article entitled “Hoodwinked! Unsavoury private eyes have been known to make up evidence for unsuspecting lawyers, often setting the cat among the pigeons in family law cases”(although Canadian, much applies to Australia). This article exposes the fraudulent and fully sick practices used by some private investigators.
A recent experience by a husband of an injured worker moreover shows that surveillance can contain errors and should not just be taken as a fact.
“… I was caught on video surveillance, which was ordered by the [insurer],while I was attending a RTW meeting with my injured wife. The surveillance report contains at least two factual inaccuracies and/or incomplete reports of the events on that day.
The PI failed to observe the my injured wife and I take a taxi from our residence to the meeting, despite the fact that according to the PI’s report, he was parked outside our house, obviously conducting surveillance on her during the time period that the taxi ride took place. How the investigator failed to see us speaking in our driveway, watch the taxi arrive, and then enter into the taxi, is a total mystery.
The PI’s report states that when my injured wife and I took a taxi back to our home after the meeting, my injured wife got out of the the taxi alone, and the taxi continued on with me still inside. This is simply false as we both exited the taxi together, and the taxi left with no passengers inside…”
The fact that there were two completely incorrect event descriptions on a single day of surveillance is very troubling indeed. While in this case, the two inaccuracies were of little to no importance to the injured worker’s legal case, it still raises a lot of questions about the reliability of surveillance evidence, and the need to use caution in how this evidence is handled.
The investigator responsible for surveillance evidence should be made available for questioning and also should always be required to attend a hearing or review.
We also believe surveillance evidence should only be admissible if there is an affidavit sworn by the PI, which sets out a record of all dates and times that surveillance was conducted. The full unedited videotape should also always be provided to all parties.
[Post dictated by WCV and manually transcribed on her behalf]
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