When surveillance material (e.g video) is sent —by the workcover insurer— to an Independent Medical Examination doctor (IME) or a Medical Panel for commentary/opinion/assessment, basically the surveilled injured worker is entitled, by law, to explain (alleged) “inconsistencies” between the surveillance video and the injured worker’s medical history/restriction.
The following tip was submitted by “iamtooparanoid” via our anonymous tip us off page.
Xchanging caught out routine contravention of IME protocol
The Medical Panel in Victoria requires that adverse surveillance material given to an IME must be shown to the worker giving him/her adequate time to respond to it before writing of the IME report. (Known because a respected IME confirmed that that the MP so requires, in his reply to Xchanging scathingly rejecting a request for a supplementary report without having a further examination. (Obtained under FOI.))
Subsequently an Xchanging CM [Case Manager] denied this rule and admitted to [the injured worker] in a recorded conversation that it routinely (deliberately) breaches this rule by sending IMEs prejudicial material to comment on by way of a supplementary report request, specifically without also requesting the injured worker’s attendance to the IME to comment on the material.
Xchanging also sent a request to another IME for his initial report with prejudiced material, but alleging it did not have the supplementary rejection of request from the first IME, even though it did, (It was listed in the attachments)! That new IME failed not only to disclose the prejudiced info to [the injured worker] in his/her exam, but failed to tick, sign and return the attachment list as required by the agent (another reason making his report invalid!).
Obviously the 2nd IME was aware if he acknowledged getting the refusal letter (report) from the first IME his own breach of the MP [Medical Panel] rule and his deliberately prejudicial use of the material (invalidating his/her report) without opportunity to comment would have been more apparent.
Injured workers are entitled to explain surveillance video
We also refer back to a fairly recent legal case (March 2014) whereby The Supreme Court found that a Victorian Medical Panel for a workcover matter acted unreasonably by failing to let an injured worker explain alleged inconsistencies between the surveillance footage obtained from the worker and the worker’s reported medical history, symptoms and presentation. The famous ‘gotcha’ video showed the injured worker “moving freely”, and as a consequence the injured worker’s condition was no longer deemed “serious”.
According to the online Claims Manual (VIC): section surveillance guidelines for agents:
Material collected by surveillance is to be only used for the purpose for which the approval is given.
Agents should use reasonable endeavours to be sure that the information is accurate, up to date and complete before the information being used. Material collected by surveillance is not used in isolation and needs to be corroborated by other information to ensure accuracy.
Tests for accuracy
Tests for accuracy may include:
- identity check, ie name and address of surveillance subject
- checking timing of the surveillance procedure
- verifying that material collected is consistent with the nature of the claim
- checking that there is no other reasonable explanation for the particular information collected such as:
- injured worker able to lift box because he/she was wearing a splint
- box lifted by injured worker was empty
- activity performed by worker did not involve using injured muscles.
Disclosure of surveillance material
Material collected by surveillance is not to be disclosed to persons other than WorkSafe or relevant Agent without WorkSafe approval or unless required by law.
If material is disclosed to another person, body or agency, the Agent should check that the recipient has policies and procedures in place to safeguard the information and treat it in line with Privacy Principles.
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