Surveillance in workers compensation – some frequently asked questions
Private investigators under the magnifying glass:
- It is not illegal for insurance companies to use private investigators.
- While the industry is loosely regulated by the licensing of private investigators, the operatives are free to go about their job surveilling people as long as they do not fall foul of the Surveillance Devices Act 2007.
- Under Section 8 of the Act it is illegal to trespass on private land or install or use surveillance or listening devices.
- In NSW, it is illegal to enter private property (including vehicles and commercial premises) without a lawful reason unless the owner, occupier or person in charge has consented. If consent is denied or withdrawn, the visitor must leave. Separate consent is required to take photographs or other recordings while on private property. Hidden cameras can not be used without the consent of the owner, occupier or person in charge. Access to hospitals, childcare centres, nursing homes and schools is regulated.
- Anyone in a public place can be photographed without permission. People on private property can be photographed without permission if they are visible from public property, provided the photographer is on public property.
- Private conversations cannot be recorded by a third party without the permission of everyone in the conversation. Conversations in public places may be considered private if those involved could reasonably expect it to be private (for example, they are not talking in loud voices or in places where third parties can clearly overhear them).
- Private investigators also cannot conduct themselves in a manner that constitutes harassment.
- Like with any victims of harassment, claimants who feel they are being harassed by a PI have the option of taking out an Apprehended Violence Order.
- In the case of claimants being surveilled it is rare they know the identity of the person they are alleging is behaving in a harassing manner.
- To many former police officers suffering from PTSD, depression and anxiety, the process of returning to a police station to take out an AVO can cause further anxiety.
- It is a criminal offence for companies to utilise material that has been obtained illegally.
- See article: Police officers suffering from PTSD hunted like criminals
Q. Will a workcover investigator really follow me?
A. Most likely. Employers and workcover insurance companies often use private investigators to conduct covert video surveillance of your activities . Surveillance is done with the hope of obtaining some incriminating evidence that can be used against you.
In Victoria, for example, it is well known that most surveillance, with the exception of where fraud is suspected, is used by WorkCover more to check up on or to verify the extent of the person injury or incapacity or the impact of the injury on their life at certain trigger points during the life a claim, ie at the 130 weeks (weekly payments) mark, or when the injured worker is seeking ongoing payment for permanent incapacity, or a lump sum impairment benefits, and most surveillance is conducted during serious injury applications via the narrative test to access common law damages.
Q. How will a private investigator track me?
A. Private investigators will generally use video equipment to record/film your activities. Some will call your house under false pretenses to get information. Some private investigators try to speak with your neighbours to see if you are working somewhere else. It is not uncommon to be followed from your home to the supermarket. We have even seen many investigators follow injured workers to medical examinations (IMEs), as the date and time of your whereabouts are known, making surveillance easier.
Q. Will private investigators look at my Internet activity?
A. Yes. Workcover insurance companies will use social media websites like Facebook and Twitter to deny workcover benefits. Investigators examine these websites looking for incriminating pictures and/or comments.
For example, a picture of you sitting on a boat may not seem like a big deal, but it will be argued that it shows you are not disabled, oe not depressed or whatever. Never post anything on the Internet that can be misinterpreted or taken out of context. Even innocent pictures can and will be taken out of context.
That’s the reason why we have a Social Networking Warning on our own site!
Q. Why do insurance companies perform these investigations?
A. Workcover insurance companies will tell you that they perform these investigations to stop fraud and abuse. But in reality, they are just looking for a way to deny or limit your workcover benefits by claiming you are not as injured as you say you are. Real injured workers’ fraud has been estimated to be only around 1 to 2%.
They will also take snippets of video out of context and try to prove in court that your injury is not real.
Q. What can I do to protect myself from investigators?
A. You should be careful at all times when you are out in public or working around your home. Do not perform any activity beyond the restrictions set by your doctor(s). You should also avoid any activity that the insurance company can use against you.
Q. Are Private Investigators bound by a Code of Practice -YES
The latest VWA (WorkSafe VIC) 2014 Private Investigator Code of Practice can be read here:
The previous version of the VWA 2004 Private investigator Code of Conduct can be read here:
If that link no longer works, here is a saved copy of the Investigators code of practice on our server
As an injured or ill worker, there are basically six (6) important things you should know about surveillance:
- As mentioned above in our FAQ list, many private investigators take advantage of the times that you are at doctor appointments, particularly at independent medical examinations. They’ll make sure they can properly identify you, your car, where you live, and how active you are.
- The private investigator may not find anything suspicious, but that doesn’t mean that the PI won’t try again. The surveillance may happen again in a few weeks or even months.
- Private investigators don’t just work from 9-5 on weekdays. They’ll also work on nights and weekends, when you may not expect them to be watching.
- Try not to talk about your daily activities with people. After filing a workcover claim, your employer may try to get information from your co-workers about where you like to go in your spare time. Investigators may go to these places to check up on you. Same goes for mentioning what you’re up to and where you’ll be going on your Facebook page!
- Make sure you follow your doctor’s instructions. If you are caught doing something that you were told not to (or told your doctor you can’t do!), your case may become less valuable and you may be seen as not credible. You should avoid activities like carrying heavy groceries, playing sports, making car repairs, or working on the outside of your home.
- The only income you receive should be from your weekly payments. If you earn additional income, even from odd jobs like babysitting or cutting grass, it is considered to be fraud.
There are heaps of articles on our site related to workcover surveillance and private investigators, you can find them under the tag ‘surveillance’ or conduct a search with typing in the keyword ‘surveillance’ or ‘private investigators’ in the search box and wait a few seconds while the ‘wheel’ spins, like so:
There is also a PIs and Surveillance Page >>
Here are some of the related articles
- How they use surveillance in workcover claims
- Followed by a workcover private investigator?
- Some IMEs undertake surveillance – watch out
- Surveillance evidence is generally of limited value, but causes substantial harm to the injured worker
- Workcover surveillance: filming longer to avoid ‘good day bad day’ argument
- Workcover and Private Investigators: the truth
- A workers compensation private investigator tells it all