GN 3.12 Surveillance

Published: 12 August 2019
Last edited: 12 August 2019

Application: This guidance applies to exempt workers

Overview

Surveillance refers to the monitoring and recording of behaviour to establish a worker’s current activities and capabilities and may include photography, video recording, direct observations and/or social media monitoring.

Surveillance services should only be used when necessary and conducted in a lawful and ethical manner. Any information obtained is to be used and stored appropriately.

This guidance looks at the decision to undertake surveillance, managing surveillance and the reliance on, storage and disclosure of surveillance material.

S25. Surveillance
Principle
Decisions to engage surveillance services will be based on firm evidence; surveillance will be conducted in an ethical manner; and information obtained through surveillance will be used and stored appropriately.

Decision to undertake surveillance

Poorly conceived and/or executed surveillance can impact the trust between a worker and insurer/employer.

The decision to undertake surveillance should be carefully considered and not undertaken as a matter of routine on claims of a particular nature or duration.

Surveillance should have a clear purpose – not merely undertaken as a matter of practice or just in case there is evidence contrary to the worker’s claim or stated level of incapacity.

The insurer should document on the file the reason for undertaking surveillance, what is hoped to be achieved by undertaking the surveillance and why surveillance is required to obtain the information (as opposed to alternative sources).

Particular care should be taken when deciding to undertake surveillance in psychological injury claims.

When responding to questions from workers about whether surveillance activities are being, or have been undertaken, insurers should answer honestly however also need to take into consideration an investigator’s safety and the well-being of the worker.

Proactively managing surveillance

Scope and duration

The scope and duration of any surveillance should be commensurate with and reflect the insurer’s purpose in undertaking the surveillance.

Choosing an investigator

Insurers are responsible for ensuring that covert surveillance is only undertaken by suitably trained, qualified and experienced investigators/surveillance officers.

Service providers should be particularly sensitive of the privacy rights of any children (persons under the age of 18 years) and family members of the worker. The provider should take reasonable action to avoid unnecessary video surveillance of children and, where possible, obscure images of children in reports that contain still photographs.

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

Insurers should proactively manage their investigator panel.

Investigator 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 surveillance
  • details of the worker including their name, address, and personal characteristics to assist with identification
  • sufficient information about the claim to allow the investigator to undertake the surveillance. However, entire claim files including a worker's private medical information should not routinely be provided to investigators
  • the scope and duration of the surveillance.

Storage, reliance and disclosure of surveillance material

Storage of surveillance material

Surveillance material may contain a worker’s personal and/or health information.

It is important that all surveillance material is stored in accordance with the relevant NSW and Commonwealth privacy, health record and other record management laws.

An insurer should also ensure that the service provider is able to comply with these laws.

Access to surveillance material should be limited/managed to protect the worker’s privacy.

Reliance on surveillance material

Material collected through surveillance should not be used in isolation but needs to be carefully considered in the context of the entire claim.

Care must be taken when considering surveillance material. The description of activities (or the footage) in any report are the opinion of a lay person who observed the worker on a given day at a given time. Video material can be misleading, edited or incomplete.

Investigators should not be expressing opinions on any aspect of claims liability. Liability decisions are a matter for the insurer.

In S&H Removals Pty Ltd v Watson [2009] NSWWCCPD 91, the Commission considered the weight to be attached to video surveillance material.

S&H Removals Pty Ltd v Watson [2009] NSWWCCPD 91


Mr Watson injured his back while working as a labourer in August 2007. His claim was accepted, and he was paid until December 2008 when liability was declined because of surveillance video obtained in August 2008 that showed Mr Watson lifting bricks. The insurer had arranged for Mr Watson to be placed under surveillance for a total of eleven days over three separate periods between December 2007 and August 2008.

In his decision, DP Roche found:

I have found the surveillance video to be of limited probative value in the assessment of this case. The episode with the bricks took no more than a few minutes. Apart from that episode, surveillance conducted over 40 hours failed to reveal any activities inconsistent with Mr Watson’s complaints

[at para 51]

And:

The video demonstrates little, if anything, about Mr Watson’s capacity to earn on the open labour market. Given Mr Watson’s evidence about his consumption of alcohol and medication on the day of the relevant video was taken, I do not believe the surveillance video is of any probative value on the issue of incapacity. It does not undermine Mr Watson’s credit and does not advance the appellant’s case on capacity

[at para 54]

Disclosure of surveillance material

Material collected by surveillance should only be used for the purpose for which it was collected and is not to be disclosed to third-parties unless it falls within this purpose or is required by law.

If any surveillance material is disclosed, the insurer should clearly document on the claim file to whom the material was provided and the reasons why.

Insurers should be aware of the Commission’s approach to the disclosure of video surveillance to Approved Medical Specialists (AMS). Clause 2.26 of the Workers compensation medical dispute assessment guidelines states that 'Video surveillance shall not be disclosed to the AMS unless ordered by the Commission in exceptional circumstances'.

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