GN 3.13 Factual investigations

Published: 12 August 2019
Last edited: 12 August 2019

Application: This guidance applies to exempt workers

Overview

Factual investigations involve the use of a third-party service provider to conduct an investigation to determine the available facts of a claim.

Factual investigations may be used to gather information to inform decision-making with respect to liability and other entitlements.

This guidance looks at the decison to undertake a factual, the referral and undertaking a factual.

S24. Factual investigations
Principle
Factual investigations will only be used when necessary and will always be undertaken in a fair and ethical manner.

Decision to undertake factual

Most claims can be determined without requiring a factual investigation, however sometimes further information or clarification is required.

Standard of practice S24. Factual investigations states that factual investigations are only to be used when necessary, and undertaken in a fair and ethical manner.

Insurers are only to undertake factual investigations when the required information cannot be obtained by other less intrusive means. Insurers should clearly document the purpose of undertaking any factual investigation.

The insurer is encouraged to consider the health and well-being of the worker when making a decision to obtain a factual investigation.

In circumstances where the worker has either a primary or secondary psychological injury, the insurer should carefully consider the need to request a worker participate in a factual investigation and the impact this may have on their return to work and recovery.

The insurer may wish to seek input from the worker’s doctor or other treatment providers.

Circumstances under which a factual investigation may be warranted include but are not limited to:

  • clarifying if a worker meets the legislative definition of a worker (as per section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act))
  • where the issues surrounding the injury are unclear or disputed
  • when there may be potential for recovery from a third-party
  • where common law liability may be indicated.

Examples of situations that may require a factual investigation include:

  • a worker claiming a journey accident, has provided inconsistent versions of how the incident occurred and the subsequent events
  • an employer disputes that the injury occurred and provides reasonable grounds that raise doubt about the validity of the claim
  • there is doubt that the worker is a ‘worker’ within the meaning of section 4 of the 1998 Act
  • a worker has suffered a psychological injury and the employer is relying on a defence under section 11A of the Workers Compensation Act 1987 (the 1987 Act) in that the employer’s actions were reasonable.

What does a factual investigation involve

A factual investigation is to be conducted by a suitably qualified and licensed provider under the Commercial Agents and Private Inquiry Agents Act 2004 and the Commercial Agents and Private Inquiry Agents Regulation 2017.

Insurers should understand the role of the investigator in factual investigations. This is to collect the relevant facts so the insurer has all the available evidence to make claims management decisions.

The information is to be obtained in a professional, objective, unbiased and non-judgmental fashion.

It is not the role of an investigator to give opinions about any aspect of the claim, or recommendations about liability, recovery or any other matter related to the claim.

Depending on the purpose of the investigation, the factual investigation may involve:

Interviews

Investigations may involve one-on-one interviews with the worker, employer and/or witnesses.

Witness statements will be obtained, and at the conclusion of each interview, the witness will be asked to read and sign the statement to attest to its veracity.

Interviews are usually conducted at the workplace but may be conducted at the worker or witness’s home if required.

Standard of practice S24. Factual investigations outlines expectations for insurers when request requesting a worker participate in a factual investigation.

The insurer should advise the worker in writing and provide information regarding:

  • the purpose of the factual investigation
  • the anticipated duration of each interview, which should not exceed two hours
  • that the worker can nominate the place of the interview and may have a support person, including a union representative present
  • that the worker may request an interpreter if required, who does not count as a support person
  • that the worker will receive a copy of their statement or transcript within ten working days of the interview
  • that the worker can identify witnesses to be considered to assist the investigation, and
  • advice to the worker that they are not obligated to participate in the factual investigation, however the factual investigation will be used to help determine liability for the claim.

Scene inspection

The investigator may be required to inspect, measure, and photograph the accident scene. Investigators may also take video footage (for example, of machinery in action).

Document review

Investigators may need to access and review relevant documents such as personnel records, injury registers, and wage records. Copies may be made of pertinent documents.

Due care and attention should be had to considerations regarding consent, where relevant (see Insurer guidance GN 1.4 Worker authorisation or consent).

Making a referral for a factual investigation

When making a referral for a factual investigation, the insurer should clearly document the reason for the referral and that a factual investigation is the only way to obtain the required information.

Insurers are responsible for ensuring that factual investigations are only undertaken by suitably trained, qualified and experienced investigators.

Providers should have in place appropriate measures to protect information collected against loss, unauthorised access, use, modification or disclosure of material collected.

Insurers should proactively manage their investigator panel.

The referral

Insurers should take all reasonable care to ensure information provided to investigators is accurate, fair and free from bias.

The referral should include, but is not limited to:

  • a clear statement of the reason for the investigation
  • details of the worker, employer and any identified witnesses
  • whether an interpreter will be required
  • sufficient information about the claim to allow the investigator to commence the investigation (entire claim files should not be routinely provided to investigators)
  • scope and parameters for the investigation.

Written advice to the worker when required to participate in a factual investigation

The insurer should contact the worker to discuss the required information. This may remove the need for a factual investigation altogether.

If the worker is still requested to participate in a factual investigation, the insurer must advise the worker in writing, and provide the information specified in Standard of practice S24. Factual investigations.

The insurer is responsible for ensuring that any written communication is correct and tailored to the individual worker’s circumstances.

Insurer action following a factual investigation

Upon receipt of the factual investigation report, the insurer should ensure that if the worker provided a statement that they have received a copy of their own statement.

If the report is relied upon to dispute liability, it is to be released to the worker under sections 73 and 126 of the 1998 Act, and clause 41 of the Workers Compensation Regulation (2016 Regulation).

In line with relevant privacy legislation, insurers may be required to release a factual investigation report if requested by the worker (even if it is not being used in a dispute). See Standard of practice S2. Worker access to personal information for more information.

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