Do I have to talk to the WorkCover investigator?

If you are reading this, odds are that you have been contacted by a worker’s compensation investigator as part of your WorkCover claim. The private investigator has asked you for a statement about the circumstances surrounding your injury and about your workplace. You are not sure whether you want to provide a statement or agree to speak with this worker’s compensation investigator in the first place.

In this blog, we explore why private investigators are involved in your WorkCover claim and whether you have any obligation to speak with them.

A private investigator is often engaged following the lodgement of a WorkCover claim where the circumstances of the injury are unclear.

When you lodge a WorkCover claim on your employer and the Victorian WorkCover Authority (“VWA”), an agent is allocated to assess and manage your claim. These agents are insurance companies such as Gallagher Bassett, Allianz, EML and DXC Integrated Services. These agents are tasked with the responsibility of assessing and managing your claim. In the initial stage of assessing whether they will accept or reject your WorkCover claim, they may engage a private investigator.

Ordinarily, they would engage the worker’s compensation investigator if there is some uncertainty about how your injury occurred. A private investigator would be engaged to:

• attend the worksite where your injury occurred;
• provide a report about the system of work;
• speak to potential witnesses; and
• investigate whether your claim is a genuine one.

The WorkCover agent assigned to your claim will consider the worker’s compensation investigator’s report before they make a final determination of the liability of your claim. At the time of confirming the outcome of your claim, in writing to you, the agent will also notify you what, if anything, has been used from the private investigator’s report.

Aside from your initial WorkCover claim, a worker’s compensation investigator can be engaged by the agent where there is doubt about the credibility of your evidence in your claim or where there is alleged WorkCover fraud. This is also known as surveillance.

A worker’s compensation investigator can provide a circumstance investigation report or a surveillance investigation report.

The circumstance investigation report is primarily focused on the factual issues and, in particular, the circumstances of the injury that led to your worker’s compensation claim and the system of work.

A circumstance investigation report may also include a copy of your personnel file, which could include the following:

• • your application for employment;
  • leave records (annual, carers/sick, long service, parental etc);
  • wage records;
  • medical certificates;
  • copies of any incident reports; and
  • payment summaries for three financial years before the injury.

These circumstance investigation report can be used by agents in determining whether there was negligence and whether there are other potentially responsible parties.

The surveillance investigation report is primarily focused on your activity and whether there is any inconsistency identified (alleged WorkCover fraud) in what you say you can and cannot do as a result of your injury.

A surveillance report would often consist of video footage and a written report to accompany the footage. Other times, a surveillance report can be an online search of your name with screenshots of your social media profiles, any ABNs under your name and other public profiles you may have.

Yes, you can request a copy of the private investigator’s report from the agent managing your claim. You may need to request the report through the appropriate Freedom of Information processes. You should inquire with your case manager about requesting the report and they will guide you on how to request it through a Freedom of Information application.

It is certainly legal for a worker’s compensation investigator to undertake surveillance of you but there are parameters to what they are allowed to do in conducting their business.

Worker’s compensation investigators that are engaged by WorkCover agents must be registered and comply with a code of practise set out by VWA. The code sets out standards by which the private investigators must adhere to before they are entitled to receive work from VWA. Interestingly, there is a specific committee known as the “external investigation management unit” that oversees the performance programme to monitor compliance and performance of the registered private investigators.

There are also directives set out by VWA on how worker’s compensation investigators must conduct themselves, particularly for claims for mental injury or where there is a risk of self-harm. The directives must be complied with by the private investigator. An example of a directive is that the interviewee should be given the option to be interviewed by an investigator of the same gender to assist them to feel more comfortable in that setting.

Worker’s compensation investigators are also required to comply with the Information Privacy Act 2000 and are not allowed to distribute any information to anyone other than the WorkCover agent.

A private investigator is not permitted to enter your property and can only surveillance you in public places such as supermarkets, parks, shopping centres, roads etc. If a worker’s compensation investigator enters your property without your permission, you may be entitled to make a claim for trespass or make a complaint to the police as it would be illegal for them to do so.

In the case of a “circumstance investigation report”, a worker’s compensation investigator may reach out to you to obtain a statement from you about how your injuries happened. You are not obligated to speak with the private investigator.

Any statement you provide to a worker’s compensation investigator will form a part of their report. If you provide a statement to the private investigator, that statement forms a part of your evidence and must be accurate. If there is any inaccuracy, however minor, it can be harmful to your WorkCover claim.

Often injured workers do not have lawyers at the time that a private investigator is involved in their case. Thus, it is important to know that you are not legally required to speak with, nor provide a statement to a worker’s compensation investigator and it is often recommended that you kindly ask not to be involved in the process.

In the case of a “surveillance investigation report”, a worker’s compensation investigator is specifically instructed not to approach you. Often you will not be aware that you are under surveillance. As long as you are genuine and honest about your limitations to the independent medical examiners and your doctors, there should be very little worry about any potential surveillance.

As an injured worker, you must disclose, to the WorkCover agent:

• any pre-existing injuries you have had;
• your current injuries;
• any changes to your work; and
• any other benefits you are receiving at the time.

• • You are injured at work and in receipt of WorkCover benefits;
  • You take another job, with a different employer, whilst on WorkCover and receiving weekly payments;
  • You do not disclose your other job to the VWA;
  • Your WorkCover agent engages a worker’s compensation investigator;
  • You are caught on surveillance as working whilst in receipt of WorkCover weekly payments.

In this scenario, you are at risk that the VWA will pursue criminal charges against you for worker’s compensation fraud. If this is prosecuted by VWA or police, and the court ultimately finds you guilty, you may be ordered to pay back the compensation you received fraudulently. There are other potential penalties, including imprisonment. These are matters for the criminal justice system and a criminal lawyer will be able to advise you on your risks.

You should be aware that your worker’s compensation certificate of capacity and WorkCover claim act as statutory declarations and it is fundamental that you ensure you disclose any changes to your circumstances to the agent to avoid any potential prosecution.

Do you have to talk to a worker’s compensation investigator? The short answer is no. You are not legally required to talk to the private investigator but if you choose to do so, you should seek legal advice.

If you have been contacted by a worker’s compensation investigator and wish to speak with a lawyer, Polaris Lawyers have a great deal of experience in WorkCover claims and will be able to advise you on your options.