Workplace injuries, whether physical or mental, can be quite complicated. Likewise, the reconstruction of events surrounding such injuries can become clouded, either with the passage of time, or because even in the most genuine of cases, different people recall different aspects and tell the story differently. Invariably, this is not some sinister plot, but merely an example of human nature at work. We all see things differently, and half a dozen eye-witnesses will describe the same scene in different ways – all of them describing exactly what they saw. Sometimes, the facts are an elusive prey. And yet, workers compensation claims rely on facts to determine the bona fides of a case.
Unfortunately, it is also true that claimants and workplaces may have selective memory, exaggerate, or sadly, misrepresent the truth entirely – either about the circumstances of the injury, or ongoing further effects.
Where there is uncertainty regarding the facts, or where any degree of accidental or deliberate fraud is suspected, it may be necessary to instigate an investigation.
The facts, nothing but the facts
Such investigations are referred to as factual investigations – which seems totally obvious – but the title highlights an important point. They are designed to investigate and communicate the facts, not opinion, whether that be from claimants, witnesses, or medical experts.
The State Insurance Regulatory Authority (SIRA) oversees all Workers Compensation, including the need for and implementation of factual investigations.
Sections S24 and S25 of the SIRA’s Standards of Practice lay out quite clearly the ground rules for these occurrences, the first of which is that insurers are to only undertake an investigation when necessary, and only when required information cannot be obtained by another less obtrusive means.
The section goes on to state that:
- If a worker is requested to participate, they are to be advised in writing as to the purpose of the investigation, including the details of the investigator.
- Any interview required shall be notified 5 business days prior, or earlier if mutually agreed.
- The worker can nominate the place of the interview, which would not normally exceed 2 hours duration.
- A support person and an interpreter may be in attendance.
- A copy of the transcript will be provided within 10 working days.
It goes on to say that a worker is not obligated to participate, but notes that the only intent of the investigation is to ascertain the liability for their claim.
Can an investigation use surveillance?
Section 25 covers surveillance very explicitly, and begins by stating that it may only be used where there is evidence of misleading or exaggerated information that is inconsistent with the insurer’s beliefs, such that the insurer has a reasonable suspicion of fraudulent behaviour.
It further states that:
- The insurer must firmly believe that the information can’t be obtained by another, less obtrusive, manner.
- The scope and duration are defined and are only conducted in or from a public place.
- The surveillance doesn’t interfere with the worker’s normal activities and must not include any form of inducement or entrapment by any means.
- The rights and privacy of children is especially described, and in particular that reports and recordings should not show images of children.
Do the ends justify the means?
Factual investigations must be conducted by third-party providers. While they play an important role, they can also erode trust and should be used judiciously.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.