Kim McLagan & Nina Hoang: Starting main topic.

Kim McLagan: Okay. So we’re starting by talking about the Toll case. So in this case, Toll tried to rely on video surveillance of this guy.

So, we had a truck driver, he was off work, he had a knee and back injury, and they got some footage of him in the garden using an edge trimmer, high pressure hose, and moving a wheelie bin. And they thought, “Right, we’ve got him.”

Nina Hoang: And then I think they also got him that he had an online store selling cars, model cars.

Kim McLagan: Yeah. And so they made submissions. But their some assumptions were that he’s doing this stuff online that means he’s got a capacity for work.

Nina Hoang: Yeah.

Kim McLagan: And they’re saying, oh, he would be sitting at his computer for prolonged periods of time. He’d be packaging up cars. He’s able to take things to the post office.

But where they fell over was they had no medical evidence at all to say that he couldn’t do any of those things.

Nina Hoang: Yes.

Kim McLagan: He responded very well to the fact that he spent a little bit of time in the garden ’cause he said, “Look, I’ve just had a cortisone injection, my pain was numbed. And my doctor said, ‘Get on with life as best you can,’” which is what he was trying to do.

Nina Hoang: Yeah, so he was following doctor’s instructions.

Kim McLagan: Yeah, and having a work hobby is not the same as having a capacity for work.

Nina Hoang: No.

Kim McLagan: And that’s, that’s the real issue in these surveillance cases.

Nina Hoang: Yeah, so they really jumped the gun without any evidence.

Kim McLagan: They did, exactly.

So, reliance on video surveillance and social media certainly has its place. And we have some real-life examples where we’ve achieved some really great results with our clients relying on social media and video surveillance.

Nina Hoang: Yeah. Right.

Kim McLagan: But that’s more the exception to the rule, I think. So, you’ve just got to do it really well. So undoubtedly the greatest risk is making assumptions about injured workers and their work capacity. Especially if it’s based on only snippets of surveillance and bits of information.

Nina Hoang: And so, in those cases, Kim, if you do have something suspicious pop up. So, say I was on a workers’ comp claim because I said I was, I don’t know, I hurt my leg or something. And then you saw a video of me dancing online, like obviously don’t overreact. But what should you be doing in that?

Kim McLagan: Well, the problem is with that, and that’s a typical sort of situation-

Nina Hoang: It comes up all the time.

Kim McLagan: You don’t see the aftermath.

Nina Hoang: Yeah.

Kim McLagan: You don’t see that you might be bedridden for the next few days.

Nina Hoang: And posting an old video or something.

Kima McLagan: Yeah, you don’t know. So, you’ve really got to do your research. So, look, if you get information and you will, ’cause I get this all the time where, you know, someone will ring me and say, “One of my colleagues or one of my employees is a friend of the worker and they said they were off this on the weekend.” Especially mental health conditions. That is the biggest thing. And we’re seeing an increase in mental health claims.

Nina Hoang: Yeah.

Kim McLagan: But you’ve got to remember, people still want to live their life as normally as they can. They still want to try and do things even though they’re in pain. Even though they’re depressed.

Nina Hoang: And it helps get better.

Kim McLagan: Exactly, so we all know that physical activity is generally good for us. Socialising is generally good. So, because you find out that your depressed employee is out at a restaurant or out getting a coffee or out doing some retail therapy, it doesn’t mean that they have a capacity for work.

And that is the main issue is the worker. You need medical evidence. Sorry. You need evidence that the worker is doing something that they have said to their doctor they cannot do. Big difference between a worker saying, I have difficulty doing day-to-day activities or working in the garden as opposed to I just can’t do that.

Nina Hoang: Yeah. So, that’s the key thing. Yeah.

Kim McLagan: As the earlier case talked about, it all comes down to the worker’s credibility if they’re being truthful. And if you have evidence to support that and it can’t, ideally it wouldn’t be just a one-off situation.

It would be like a social media lady, where we have lots of evidence over a prolonged period of time, which demonstrates a constant capacity. And keeping in mind it’s not capacity to be at home doing housework. It’s a capacity to be at work doing a job. It doesn’t have to be your job, like your pre-injury job.

Nina Hoang: Just a job.

Kim McLagan: But a job.

Nina Hoang: Well, it sounds like then from what you-

Kim McLagan: Well suitable duties, sorry.

Nina Hoang: Oh yeah suitable duties. That’s right. But it sounds like from what you’re saying then, one another important part is making sure you get accurate medical information from the doctor.

Kim McLagan: Exactly.

Nina Hoang: And sometimes it can be so vague. So that’s something else that employees can do to really zone into what you can, sorry, what the employee can and can’t do in order to rely on that.

Kim McLagan: Yeah, and because under the fair work, sorry, the workers comp, was talking about the Fair Work Act. An employer can write to a treating doctor, and you can use the signature part of the worker’s injury claim form as the workers’ consent.

Nina Hoang: Oh wow.

Kim McLagan: So that allows an employer to write to the treating doctor and get information about the worker’s injury and capacity for work. So, you don’t have to go through the employee to get that.

Nina Hoang: Oh, that’s a really good tip.

Kim McLagan: So, if you are suspicious of a worker, there’s nothing to stop you from writing to the doctor to confirm your suspicions. I think that’s a really important thing to do. But the other important thing to do is get your insurer on board because they will as we’ll talk about the case that we’ve helped our client recently.

But if you’ve got information and its good solid information, get your insurer on board. Because if you get your own surveillance, they may not pay any attention to it, but you’ve got to convince ‘them that it’s worthwhile to do it themselves.

But it comes at a cost. And so many cases have fallen over like Toll, where they push and push and push and terminate a claim or reject a claim, but they don’t actually have a good basis for doing it ’cause they don’t have the right information.

Nina Hoang: Yeah Wow, very costly then.

Kim McLagan: So how we going for time? Oh, not too bad.

Nina Hoang: No, no, you’re good.

Kim McLagan: One quick example about the-

Nina Hoang: No, because I think it’s important example yeah.

Kim McLagan: It’s a real practical life example where a client rang me and said, look, we’ve got a guy off work with a shoulder injury. We’ve given him the lightest possible offer of sort of alternate duties, which is really just standing in the doorway and greeting customers as they come in.

Kim McLagan: So, he could not-

Nina Hoang: Couldn’t do anything less.

Kim McLagan: No, He’s able to stand. So that’s no problem. But not only that, we found out that he was doing weekend work during this employment in a retail store and I’ve got really good evidence that he’s still doing it. So what do we do? So we got the insurer on board, the insurance put him under surveillance and enough surveillance where they’ve terminated his payments. But not only that, he had written or ticked the box on his certificate of capacity that he wasn’t engaged in any other employment.

Nina Hoang: Oh, so he’d actually lied yeah.

Kim McLagan: So that was a good one.

Nina Hoang: Yeah.

Kim McLagan: And we do have other examples of good ones like that, which we won’t go into, but you can do it, but you’ve just got to do it properly.

Nina Hoang: Yeah, and I think that’s a very clear example where it wasn’t particularly onerous for the employer. And you know, just taking that time to do those extra steps meant that it was a clean result because the import, sorry, insurer was a hundred percent on board. Yeah.

Kim McLagan: Yeah. So that was fun. It was a bit of win.

Nina Hoang: Great example.

Kim McLagan: Like a win.

Nina Hoang: Alright should we go onto the case study? Dino hurt his back at work. His doctor issued a certificate of capacity for one month, diagnosing a herniated disc after reviewing an MRI that showed a mild bulge of the L1-2?

Kim McLagan: Mild bulge of the L1-2 discs.

Nina Hoang: Oh L1-2 discs.

Kim McLagan: So low back injury.

Nina Hoang: Okay the certificate stated that he was unfit for any work. An investigation into the incident that caused his injury was inconclusive. CCTV showed Dino entering the site with a slight limp and mildly hunched over early in the morning. He claimed the injury occurred while lifting his toolbox to work on a conveyor belt. The area in question was under CCTV coverage all day.

In both instances, the CCTV clearly captured his movements, but not his facial expressions. Dino did work on the conveyor belt using the toolbox, but there were no visible signs of physical distress at any point during the day.

His co-worker said Dino never complained of any incident during the day, but did mention that his back was sore when asked why he was stooped over. The co-worker was surprised that Dino had injured his back at work, as he assumed it was injury Dino sustained over the weekend.

Dino’s Facebook page showed him playing rugby the weekend before the alleged injury at work with an ice pack on his lower back and the caption, “Can you believe it? They climbed all over me.” Many employees suspected that Dino was trying it on.

As a result, the employer engaged a private investigator to gather footage of his follow-up appointment with the doctor as well as any other evidence of his daily activities. 10 days after submitting his claim, the private investigator filmed Dino changing the tyre of his wife’s four-wheel drive, then picking up the wheel and placing it in the back of the car. There were no visible signs of strain or pain on his face during the task.

Nina Hoang: All right.

Kim McLagan: Okay.

Nina Hoang: Was his employer entitled to view his Facebook page even though it was set to the highest privacy settings?

Kim McLagan: Yes, the short answer was, and Jurecek has authority for that. So, privacy principles, which is what Jurecek talked about, don’t trump the need to investigate if there’s a serious wrongdoing by the employee or a suspicion that the employee-

Nina Hoang: And there’s a risk that they’re going to remove it.

Kim McLagan: Yeah.

Nina Hoang: Yeah. So, you definitely can rely on it, but you need to make sure you follow the requirements in Jurecek yeah.

Kim McLagan: Yeah.

Nina Hoang: How useful was the private investigator’s video?

Kim McLagan: Okay Kinnane talks about being careful not to make assumptions like we were talking about earlier. So, it’s easy to assume here that Dino didn’t have a bad back.

Nina Hoang: Yeah.

Kim McLagan: But Kinnane demonstrates the risk of relying on that one-off incident, which doesn’t in fact tell the whole story.

Nina Hoang: Yeah, and like you said, if you rely on that and say it’s missing context, then it’s very easy for the whole thing to fall over.

Kim McLagan: And also, a lack of medical evidence in this example as well.

Nina Hoang: Nothing supports yeah. So, for the third one.

Kim McLagan: So yeah, at a disciplinary meeting after the employer had viewed the Facebook and video, the employee was dismissed. Was there any workers’ compensation risk? Andrew, in doing this case study, he mixed it up a bit.

So, he’s provided some new information that we’ve to share with you under question number three, which is at the disciplinary meeting, Dino said he was stood on by a bigger guy with footy stomp marks down the right side of his lower body.

He pulled his shirt up and showed the now healed but still pronounced stomp marks on the right-hand side of his back just above his hip. The employer showed the photo on Facebook where the ice pack appeared on his spine and not the outside part of his lower back. And noted that he was stooped over and sore when he came to work.

Dino agreed and said his lower back was bruised and sore with an open wound that was healing. They told Dino they had video of him changing a tyre, and it was well beyond what his doctor had said he could do. They put it to him that he was a liar.

He said his wife needed to get to work, it hurt like hell changing the tyre and he had to lie down afterwards, and he was never shown the video. So, in terms of Dino’s work cover claim for his back injury, I think that could potentially be accepted.

Remember he just has to say, I hurt my back at this date, at this time at work, this is how it happened. The employer has to prove it didn’t happen that way. It’s not enough.

Kim McLagan: So, it’s the onus on the employer.

Kim McLagan: Onus is on the employer. And the employer in this case hasn’t been able to reduce any evidence at all that he didn’t injure himself at work. And they also haven’t been able to establish that what happened on the footy field was the cause of his injury. So, there is a very high risk is what cover claim would be accepted.

Nina Hoang: So really then in order for them to succeed, they would need to have further evidence other than just the rumours and the Facebook posts that he had been in. So, for example, if he’d gone to hospital afterwards and there was evidence of that. Something to that effect. Is that right?

Kim McLagan: Yeah, so look, it’s still absolutely worth challenging the decision with the insurer because the insurer will, and you know, because you want to give them enough information to warrant an investigation and as part of that investigation, the insurer will write to the treating doctor for the clinical records. So, if the doctor has legal records saying he went to the doctor after the footy game, he’s sunk.

Nina Hoang: Yeah.

Kim McLagan: But if he went to the doctor at the end of that working day and said to the doctor, I had my back on the conveyor belt, lifting the toolbox today is kind good up for sure.

Nina Hoang: Yeah. I see.

Kim McLagan: Always, if there’s enough doubt to warrant an investigation, definitely-

Nina Hoang: Definitely give it a go.

Kim McLagan: Give it a go. But don’t deny everything because you’ll be the boy who cried wolf, and your insurer won’t take you seriously when you do have a valid rejection or denial of the claim.

Nina Hoang: Oh, very interesting. So, could Dino claim his dismissal was unfair or successfully bring general protections claim? Oh yeah. For all the reasons that we just said. Like there’s no evidence, so there’s no valid reason for unfair dismissal claim. And I think the procedure itself was lacking.

Kim McLagan: Yeah, definitely. They didn’t take into account anything he said to them. They didn’t show him the video surveillance of him.

Nina Hoang: No.

Kim McLagan: Definitely.

Nina Hoang: And then general protections claim, it’s clearly because he had a protected attribute as well yeah. Crazy stuff. Yeah. What would the impact be if his dismissal were related to his workers’ compensation?

Kim McLagan: Yeah, so if he’s terminated, obviously they can’t bring him back to do suitable duties. So, if he’s got a genuine injury, he can sit at home on work cover, and they can’t do anything to control the increase in premium because they can’t bring him back to work and pay him wages. So, he is not weekly comp. So, the first impact is the increase in premium and they also risk prosecution from WorkSafe for terminating him within the obligation period.

Nina Hoang: I think that’s something that people forget about all the time. So, yeah, good reminder. Not just under unfair dismissal general protections, which they could still file and you could still have these workers’ comp prosecutions as well.

Kim McLagan: Yeah.

Nina Hoang: Yeah. Cool, we made it Kim. We survived. All right, please give us a thumbs up to make sure to show Andrew we did a good job yeah. But next week it will be us again, or it might be Andrew by himself.

Kim McLagan: We’ll see.

Nina Hoang: We’ll keep it interesting for you. All right, thanks everyone.

Kim McLagan & Nina Hoang: Thanks everybody.

Nina Hoang: Bye.

Kim McLagan: Bye.