surveillance of workcover defense IME should be allowed

ime-under-surveillance

In wokcover cases, the defense counsel (insurer and their lawyers) has been allowed , for years, to use covert video surveillance to challenge the injured worker’s testimony in court regarding the extent and severity of his/her injuries.  Allowing the injured worker to use the same surveillance means to challenge the testimony of a defendant’s chosen doctor (IME) on the same issue by exposing the thoroughness (or often lack thereof) of the IME’s examination of the injured worker should, in our opinion, also be routinely accepted.

Surveillance of workcover defense IME should be allowed

It is well known that, for example in Victoria, most surveillance on injured workers is used (and abused) by WorkCover (and its agents) to “check up” on or to verify the extent of the injured worker’s injury or incapacity or impact on their life, at certain critical points during the life of their claim such as at the 130 weeks mark where the injured worker is seeking ongoing weekly payments; or for permanent impairment lump sum benefits, and especially in serious injury (SI) applications via the narrative test to access common law damages.

These surveillance videos are used not only to question and impeach the credibility of the injured worker, but also as substantive proof to rebut the injured worker’s claims of physical limitations/restrictions, impact on life and severity of injury.

The use of secret surveillance footage in Court has become increasingly effective, partly due to significant improvements in technology. Small and high definition cameras are now readily available at low cost, making quality spying equipment easily accessible and very concealable. Just about every mobile phone has a video camera, all making video surveillance much easier than ever.

For many years, courts have admitted this kind of injured worker’s surveillance video evidence as a means of ‘preventing fraud’, accepting the standard argument put forward by the defense (workcover, its agents and their defense lawyers) that if the injured worker is telling the truth about his/her injuries, then s/he should have ‘nothing to hide’. Conversely, if the injured worker is telling less than the truth, then the surveillance video shall serve as a powerful means to ‘expose the lie’.

More recently, with the widespread presence of small and reliable video cameras (eg iphone/mobile phone cameras), injured workers have used and are using surveillance footage of so-called “independent medical examinations” (IMEs) to (try and) challenge court statements made by the defendant’s chosen doctors, the IME’s.(expert witnesses).

Courts are effectively allowing workcover defense counsel to use secret video surveillance to challenge the injured worker’s testimony in court regarding the extent and severity of her injuries, but they are not (really) allowing the injured worker to use the same means (secret surveillance) to challenge, for example, the testimony of the defendant’s doctor (IME) on the same issue by exposing the thoroughness (or often lack thereof!) of the doctor’s examination of the injured worker.

We believe that injured workers should have the same rights as workcover (defense) and be allowed to routinely introduce covert (or even non secret) surveillance of their so called independent medical examinations.

If we are to achieve fairness in the adversarial process, and if trials in Court are to remain reliable means of discovering the truth, then both sides must be allowed to use secret video surveillance where appropriate, not?!

IMEs need to be made accountable

In a personal injury case (common law), the injured worker has the burden of proof with re to the nature and extent of her injury. As a way of challenging that proof, the defense is afforded the right to conduct an examination of the injured worker (eg before  trial) by a doctor (IME) of its choosing.

As we have described in multiple previous IME articles, an IME cottage industry has subsequently bloomed, and certain IME doctors derive a significant portion of their income from conducting defense-oriented (independent) medical examinations. Many of these IMEs earn hundreds of thousands per year as a result of their involvement in litigation alone. Indeed, many of these doctors no longer spend the majority of their time to treating patients, since litigation has become so $$$ lucrative.

However, just as there are certain (few) dishonest injured workers who engage in ‘fraud’ for personal benefit, there are certain doctors (IMEs) doing the same, conducting countless IMEs in a manner similar to a factory-line worker, spitting out dishonest reports for pure monetary gain.

It has been argued that members of the defense believe (and perhaps lobby) that secret surveillance of (defense) medical examinations should not be allowed. However, As far as we can gather, there are no clear cut laws in Australia on the issue whether you are allowed to even openly, let alone secretively video-tape an independent medical examination doctor (IME) or not, other than that it’s usually at the discretion of the IME doctor. (Also see privacy laws in Australia)

The fact is that, as far as we understand, there is no real statutory prohibition on videotaping an IME, whether secret or otherwise, and there is certainly no requirement that the injured worker obtains permission from the court to videotape an IME.

More importantly, the counter argument of the workcover defense that secret videotaping of IMEs should be forbidden is nearly identical to the workcover defense argument as to why video surveillance of an injured worker should always be allowed, that is: if the doctor  (IME) conducting the examination is telling the truth, then he should have nothing to hide and should welcome the admission of the video.

The IME video would serve as substantive proof of exactly what is stated in the IME doctor’s report. However, if the doctor /IME is not telling the truth, or if the doctor/IME failed to conduct a sufficiently thorough examination of the injured worker so as to provide a credible opinion as to the severity of the injuries etc, then the video will expose the lie!

For example let’s say the examining doctor testified in court that his IME took about 15 to 20 minutes. But the video tells a completely different story. The video surveillance of the IME proved that the total time of the examination was only 8 minutes and 52 seconds. Not only would the video have the effect of impeaching the IME doctor’s credibility, but it would challenge the substantive proof as well. Without the video, even the most experienced cross-examiner would not be able to thoroughly expose the discrepancy as to the time it took to conduct the exam. The injured worker’s contrary testimony as to the length of the examination would merely create a credibility contest between the injured worker and the IME doctor.

To prevent a party from offering / introducing surveillance footage when a dishonest act has taken place is tantamount to allowing one party, or its agent, to perpetrate a fraud with impunity, not?

In our opinion, fairness to both sides requires that surveillance of both the plaintiff (injured worker) and the defense chosen  IME doctor should be freely allowable.

What are your thoughts?

 

Somewhat related articles

Can I video-tape my independent medical examination?

Medical Panel examinations – beyond belief they are not recorded – Supreme Court Vic

Some interesting reads

There has been a shift in Canada in recent years, in the personal injury field of law, towards plaintiff counsel pushing for certain defence medical assessments of their clients being videotaped.

Videotaping Medical Examinations A Case Law Review (Canada, 2007)

Plaintiff’s right to videorecord independent medical examinations and/or to have a nominee present (Canada)

 

[Post dictated by workcovervictim and manually transcribed on WCV behalf]

 



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7 Responses to “surveillance of workcover defense IME should be allowed”

  1. What if the IME videos you openly in the examination but then when you make a complaint he bullied you, you are not able to obtain a copy of the recording to prove it?
    If the IME records the examination how can you get a copy to verify a complaint?
    If the insurer has a policy of recording phone calls on their website but they don’t tell you they have recorded the call till the end of the call is that legal?

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    Make them accountable September 28, 2014 at 11:22 am
  2. In NSW it is illegal to voice record a persons without their permission, I just inform a IME that I am going to record the interview. If he doesnt want to continue then I have complied with my requirements to present myself and participate. It IS ILLEGAL in NSW to secretively video tape a person in a private residence etc without their knowledge. The exception to this would be if the interior of the building can be seen from a public area or is a public area, foyer, waiting room etc

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    • we had this done but were not asked permission for it to be recorded

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      deidre kinghorn October 4, 2014 at 7:59 am
    • @Sharon, just double check bc if they display a sign on the premises or residence that can be seen, then it is not illegal from what I’ve been told bc if u go in past the sign, then that’s the same as consenting to it, i.e. you have given them your permission (but again this info came from VIC) Also the Police informed me that if you are party to a conversation that is being recorded then u are also legally permitted to record the call. So each time I call the VWA I record the conversations. I have some very interesting conversations on tape. Eg. flat out refusing to give me access to IME lists under FOI and also telling me I’ve been in the system too long and the WorkCover Scheme was never set up for long-term claimants, also telling me anyone on a long term claim should be on a disability pension. Also lots of excuses for the Insurance Comapnies for non-compliance to procedures. It seems everything they do is open to discetion & acceptable even if it breaches an injured workers rights. I’m sure nobody will die of surprise over that info. I love your tactic in relation to IME’s though, that’s a good one. One time I faxed an IME a heap of questions about how much work he did for workcover and how much he earned and what % of his business tunover was derived from workcover etc – about 20 questions in all. Later I got notified by the Insurance Co that the appointment had been cancelled and no further appointment were made after that for quite some time.

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  3. I am from W.A. I’m 3 years injured and have proof of severity of my injuries, why can my doctor and my surgeon see why I’m in so much pain and deteriorating but IME’s disagree. I have used my so called medical allowance to prove I have legitimate injury, my IME is on the list, I have seen him a number of times and all his reports are so full of blatant lies it makes me sick. I was sent to him a week ago and where I’m usually quiet and cooperative this time I challenged him on past reports, I where my name was on the front opening statement and another ladies name was used throughout report. I can’t sit for long due to pain but in his opinion I sat quiet comfortably, how would he know how I feel? I have recorded every appointment I go to for my own sanity not to use in court but to reassure myself I’m not insane and he is a liar. I have a lawyer who I can’t get in touch with so double frustration. If there is a W.A. Based support group I would love to join as I’m aware the laws are different for each state. My medical allowance has been cut off 9 months ago but wasn’t told now I have thousands of $$$ in bills turning up in my mailbox daily, I can’t afford my medication or treatments to reduce pain, I don’t go out because of panic attacks, I’m desperate for a lifeline. Hope you can help. Losing Hope.

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    • @Losing hope, here’s a big virtual hug !

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      • @Losing Hope, sorry to read about your difficult (read: terrible) situation. Is there no way you can appeal/dispute this IMEs report/opinion? Provided your own treaters are credible and on your side this should be fairly simple to appeal.
        I am not familiar with workcover WA, however there is a good summary available of entitlements etc here. Might be worth studying along with the legislation. I see there are provisions to extent a medical allowance as well.
        I am not aware of any support groups for injured workers in WA, but we do have a few regular readers here who may be willing to give some advice. Maybe all our WA visitors ought to set something up in WA such as a ‘support group’ or ‘social club’?
        As for your lawyer, make a call to the lawyer’s boss or the firm’s director and explain as it is, your calls are not being returned. Usually this helps a lot.
        If that does not help consider switching.

        Hope this helps a little and welcome to our big injured family!

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