Surveillance guidelines for Worksafe Agents.

Section 15.4.3

Guidelines for Surveillance of Workers for Compensation
These guidelines are for use by agents in claims for compensation
under the Accident Compensation Act 1985 (Vic) involving
surveillance.

They are based on the Federal Privacy Commissioner’s Optical Surveillance
in Commonwealth Administration Guidelines, February 1992.

1. Determining the necessity for conducting surveillance
Prior to commissioning surveillance the agent should assess the need to use
surveillance.
1.1. Surveillance should only be used:
1.1.1. when other less intrusive methods of investigation have been considered
and have been assessed to be ineffective and inadequate; or have been tried
and the outcome found to be inconclusive.

1.1.2. when the claim is of such a nature as to warrant the use of surveillance
and when there is adequate evidence to suggest that the worker may be:

· misrepresenting his/her disability,
· claiming excessive disabilities,
· malingering, or
· involved in the commission of a fraud.

1.1.3. where the benefits arising from obtaining relevant information by
surveillance are considered to outweigh to a substantial degree the intrusion
on the privacy of the worker.
1.2. If in doubt, the agent should consult the Investigations Unit in the VWA
Compliance Branch, about the desirability or necessity of obtaining
information by surveillance.

2. Application to conduct surveillance
An application to conduct surveillance should be in writing, and include a
clear statement on the following, in line with appendix Surveillance Form for PI.
2.1 The purpose for the surveillance.
2.2 The name, address, and other relevant details of the worker, including:
2.2.1 the personal characteristics of the worker to minimise the risk of
misidentification
2.2.2 a description of the worker's premises (for example, a particular office
location or building).
2.3 The nature and details of the claim (for example, muscular-skeletal injuries).
2.4 The kind of information to be collected by surveillance, including:
2.4.1 the performance of physical activities that may indicate that the worker
is making a false claim (for example, ability to lift objects known to be very heavy).
2.5 Whether alternative investigative methods have been considered/
undertaken to obtain the information required and the results, if any, of
these investigations.

Alternative methods may include:

· interviewing workers
· interviewing witnesses
· reviewing agency records
· reviewing worker's records.

2.6 The relative cost/benefits of undertaking or not undertaking the surveillance,
for example:
2.6.1 an estimate of the financial or other resource costs of the surveillance
2.6.2 whether the amounts involved in a worker's compensation claim
warrant the costs involved in the surveillance.
2.7 Particulars of the investigator undertaking the surveillance.
2.8 Whether the procedure has been recommended by the VWA’s
Compliance Branch, Investigations Unit.
2.9 The method by which information is to be collected, for example:
· by photography
· by video recordings
· by recording of observations in a log
· by combinations of the above.
2.10 The period and scope of the surveillance, including:
· surveillance period (for example, daily)
· surveillance dates
· activities to be observed (for example, gardening, lifting, shopping)
· whether the surveillance is to be confined to the domestic environment
or extended beyond the worker's premises.

3. Approval to conduct surveillance
3.1 Approval to conduct surveillance in a particular case is to be given by
a case manager, or a superior manager, in line with Claim procedure support
document 7.4 Surveillance Form for PI.
It is not appropriate for a claims officer to approve surveillance. If it is r
equired, the claims officer is to refer the claim to the multidisciplinary
management (MDM) segment.
3.2 Approval is to be issued for a limited time only, as follows:
3.2.1 The period of surveillance should be appropriate to the circumstances
of each case, but should not extend beyond 15 hours, without further approval.
This period may be extended when there is difficulty locating the worker.
3.2.2 A new application should be made to extend or recommence surveillance
after the expiry of the initial approval.

4. The collection process
4.1 Surveillance should be undertaken only by licensed and trained investigators
/surveillance officers registered with the VWA.
4.2 All surveillance activity must comply with all applicable laws, rules and
regulations [including the Private Security Act 2004 (Vic), the Surveillance
Devices Act 1999 (Vic), the Privacy Act 1988 (Cth), the Information Privacy
Act 2000 (Vic.)] and such policies and directions notified by the Victorian
WorkCover Authority from time to time.
4.2.1 Video surveillance activities as part of an occupational rehabilitation
program should not occur.
4.3 Strict instructions on the conduct of surveillance should be issued to the
surveillance officers, in line with appendix 15.4.4 - Surveillance guidelines for
PI and appendix Surveillance Form for PI:
4.3.1 In performing all surveillance activity in connection with the
performance of these instructions, the investigator agrees to be bound by
the Information Privacy Principles set out in Schedule 1 to the Information
Privacy Act 2000 (Vic.) in the same manner and to the same extent at the
VWA would be bound by those principles if the surveillance was engaged in
by the VWA.
4.3.2 Avoidance of any actions which may unreasonably impinge on the
privacy and rights of other people, for example, when using photography,
avoid, where practicable, including other individuals such as relatives and
friends, who may be in contact with the worker during the surveillance
period, in the photograph.
4.3.3 Where practicable only material relevant to the purpose of conducting
the surveillance should be collected. There should be a clear separation of facts
from opinions and only relevant personal information should be included in
records resulting from the surveillance.
4.3.4 Instructions on the manner of collection of personal information include:

· the collection should not involve the commission of a criminal offence or
give rise to a civil action, for example, trespass to land or goods.
· the collection should not involve entrapment of the worker. Hence, passive
observation is permissible, however, any attempts to actively induce the worker
into a situation in which that person would not ordinarily and voluntarily enter,
thereby creating a false or misleading impression of the person's disabilities,
should not be permitted.
4.3.1 Instructions on obligations of investigators to safeguard the material
collected. See sections 5 Use and disclosure and 6 Storage and security.
4.3.1 The method by which information is to be collected (for example,
photography, video recordings or logs with observations recorded). This should
be appropriate to the purpose of collection in the particular case. See paragraph 2.9.
4.3.1 The period and scope of the surveillance procedure as specified in
paragraph 2.10.

5. Use and disclosure
5.6 Material collected by surveillance is to be used in accordance with the
following conditions:

5.6.1. The material is to be used only for the purpose for which the approval is
given, and

5.6.2. Each agent should use reasonable endeavours to satisfy itself that the i
nformation is accurate, up to date and complete prior to the information being
used. Material collected by surveillance should not be used in isolation but
corroborated by other information to ensure accuracy.

Tests for accuracy may include:

· identity check, i.e. name and address of surveillance subject
· checking timing of the surveillance procedure
· verifying that material collected is consistent with the nature of the claim
· checking that there is no other reasonable explanation for the particular
information collected such as:

- injured worker able to lift box because he/she was wearing a splint
- box lifted by injured worker was empty
- activity performed by worker did not involve using injured muscles.
5.7 Material collected by surveillance is not to be disclosed to persons
other than the VWA or relevant agent without VWA approval, or unless
required by law.

5.8 Where material is disclosed to another person, body or agency, the
agent should satisfy him/her self that the recipient has in place policies and
procedures to safeguard the information and treat it in accordance with the
Information Privacy Principles. See Section 6 Storage and security.

6. Storage and security
Agents should ensure private investigators are aware of the need to put in
place appropriate measures to protect the material against loss;
unauthorised access, use, modification or disclosure by:

6.1 Restricting access of material to relevant personnel on a "need to know"
basis.
6.2 Storing the material in a secure area (for example: a locked file).
6.3 Storing material separately to other routine administrative information
about the worker.
6.4 Maintaining a log of all personnel accessing, using or removing the
material, in order to establish an audit trail. Information to be recorded includes:

6.4.1 The reason/s for disclosure.
6.4.2 The recipient of the information.
6.4.3 The officer authorising disclosure.

7. Monitoring
7.1 Agents should review their surveillance practices periodically.
This review may include:

7.1.1 An evaluation of compliance with the guidelines.
7.1.2 A cost/benefit analysis to evaluate the use of surveillance as a means
of achieving the VWA's objectives and taking into account the worker's right to
privacy.
7.2 Agents should conduct ongoing monitoring of the conduct of surveillance
and should provide training of staff involved in all aspects of surveillance.

Ref: Victorian WorkCover Authority, Melbourne