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When social media contradicts medical evidence

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When social media contradicts medical evidence

20 August 2020 by Nes Demir

When social media contradicts medical evidence

Mr Chugha was employed as a rehabilitation officer for Comcare. He suffered major depression (injury) after being subject to workplace bullying and intimidation.

Mr Chugha was advised by his supervisor that a promotion was imminent, but his supervisor was replaced by a new supervisor who refused to promote him. Mr Chugha took this up with his superiors and was eventually promoted as promised. Mr Chugha felt his new supervisor began to treat him unfavourably and caused him extreme difficulty over the next two years, leading to his injury. His injury was exacerbated ten years later, when he was placed under the supervision of the same supervisor again.

Comcare accepted liability for Mr Chugha’s injury and the subsequent exacerbation of his injury. Approximately four years later, Comcare made a “no present liability” determination that Mr Chugha was no longer entitled to compensation because his employment was no longer a significant contributing factor to his condition. Mr Chugha applied to the Administrative Appeals Tribunal for a review of Comcare’s determination.

Comcare raised information it obtained via Mr Chugha’s social media accounts to suggest Mr Chugha had capacity to work, contrary to medical evidence. This includes Mr Chugha’s participation in various activities which demonstrated a level of activity and behaviour inconsistent with medical evidence. Mr Chugha had travelled overseas, ran for election for two years and was the president of the State Punjabi Association where he planned large Diwali events, advocated for community members and acted as their support person in AAT proceedings.

Mr Chugha’s psychiatrist gave evidence Mr Chugha’s social media did not reflect any meaningful non-depressive state and advised that after engaging in the activities mentioned, Mr Chugha suffered periods of very low mood that still rendered him unfit for work.

The Tribunal accepted the evidence of Mr Chugha’s psychiatrist, noting social media information can “provide a false picture of happiness and excitement” and it would be more productive for Comcare to use such information to assist Mr Chugha’s treating practitioners in preparing a more comprehensive rehabilitation plan which builds on his evident strengths and potentially leads to a return of capacity.

See Chugha and Comcare (Compensation) [2020] AATA 2835

Lessons

  1. Generally, private information on social media site is subject to privacy laws. The exception is where it is necessary for a ‘legitimate purpose’. This includes alleviating concerns raised by an employee’s out-of-work activities which contradict medical evidence, but only to the extent that the medical evidence lacks detail, or the evidence contrary to the medical evidence is compelling.
  2. Workplace surveillance is subject to specific workplace surveillance laws.
  3. Any evidence collected through surveillance can be contextual. For example, you may witness an employee with a soft tissue injury lift something much heavier than medical evidence suggests possible. You don’t see whether they are on pain killers and in serious pain for several months after.

Using workplace surveillance carries significant risk around your OHS obligations and workers compensation. It can increase stress levels in the workplace and even make some employees feel bullied.

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce. Contact Andrew Douglas at andrew.douglas@fcwlawyers.com.au or on 0488 151 503.

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