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.
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?
What are your thoughts?
Somewhat related articles
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)
[Post dictated by workcovervictim and manually transcribed on WCV behalf]
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