2.8.1 Role of private investigations


2.8.1.1 Use of private investigators | 2.8.1.2 Code of practice for private investigators | 2.8.1.3 Parameters for investigative interviews | 2.8.1.4 Circumstance (factual) investigations | 2.8.1.5 Surveillance (activity) investigations


2.8.1.1 Use of private investigators

Private investigators (PIs) are used to carry out WorkCover investigations.

Investigations are one of the tools that may be used in the claims management process. They assist to:

  • assess liability
  • determine common law entitlement
  • determine entitlement in other litigated matters
  • establish whether there has been scheme abuse.
Agent selects investigation firm from WorkSafe registered firms

WorkSafe authorises a number of investigator providers as the only firms who can carry out WorkCover investigations. Agents may allocate an investigation to any of these registered providers.

The Agent determines which firm will carry out the investigation, employers must not exert influence in the claims investigation process.

Agent responsibilities include:

  • allocate investigation work to PI Private Investigator firms registered with WorkSafe, based on their location relative to the investigation and required specialist skills
  • instruct and manage PI performance
  • ensure PIs comply with relevant legislation
  • pay PIs
PI code of practice

Registered PIs must comply with WorkSafe's Code of Practice for Private Investigators as a condition of their registration – see: Code of Practice for Private Investigators.

The Code introduces a common set of high conduct and quality standards that have to be accepted and adhered to by any existing or new registered investigator before they are eligible to be allocated WorkCover work.

Failure to comply with the code may result in suspension or termination of a provider number or other remedial action.

Enforcement group

Within WorkSafe’s Enforcement Group, the External Investigation Management Unit (EIM WorkSafe’s External Investigation Management Unit) works with Agents and PIs to administer the Private Investigator Performance Program. The aim of the program is to standardise the procedures Agents use to arrange investigations and to ensure better management by WorkSafe of private investigation.

EIM's role is to:

  • manage the private investigation process
  • conduct audits of investigators performance
  • investigate complaints about investigators and investigations
  • monitor costs
  • manage and maintain a registration data base.

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2.8.1.2 Code of practice for private investigators

The code of practice for private investigations was updated in 2016.

See: Code of Practice for Private Investigators 2016 | Code of Practice for Private Investigators 2014

2.8.1.3 Parameters for investigative interviews

WorkSafe issues the following directives for immediate implementation in cases involving workers claiming any form of mental injury, stress-related claims or if there is a risk The probability of the worker not returning to work is known as the risk or risk factor. For example: if a worker is likely to return to work, the claim is categorised as low risk. of self-harm:

PI responsibilities
  • The responsibility for the proper conduct and control of the circumstance investigation remains with the investigator.
  • The investigator is expected to display attentiveness, compassion and an appropriate level of care when conducting a circumstance investigation.
  • The investigator allocated to the case should have a minimum of 5 years relevant experience in conducting investigations.
Arrange interview
  • The claimant A person who applies for WorkCover benefits. should be given the option of being interviewed by an investigator of the same sex.
  • The investigator must ensure the claimant is advised of their right to have an independent representative or support person present at the time of interview and actively encouraged to exercise this right. If a claimant requests or nominates an independent person or support person to be present during the interview, the investigator must not start the interview until that person is present.
Prepare for interview
  • The investigator must ensure that prior to commencing an interview with a claimant, they have requested the instructor to provide them with known risks associated with the case. If there are any concerns for the welfare of the claimant, or any person who may be a subject of the investigation, the investigator should immediately report back to the instructor.
  • The investigator should prepare relevant information before starting the interview in order to minimise the time required for the interview.
  • After the investigator has clearance to contact the claimant, they should, when arranging the appointment, tactfully and carefully tell the claimant what to expect during the interview. Appointments should be confirmed in writing.
Conduct interview
  • Upon arrival at the agreed location for the interview, the investigator must consider the demeanour of the claimant and based on their own skills and experience, determine if it is appropriate to start the interview at that time.
  • At the start of the interview, the investigator must clearly outline the claimant’s rights and advise of the following:
  • The right to terminate or reschedule the interview at any time.
  • The right to suspend the interview to have a break at any time.
  • The right not to answer a question that is put to them.
  • That the investigator is not responsible for making determinations related to their claim for compensation benefits.
  • That the investigator has a responsibility to ask a wide range of questions in order to enable the decision maker to assess their claim.
  • The investigator must be vigilant at all times during the interview to any change in the claimant’s demeanour and be alert to any signs of fatigue.
  • The investigator must take control and terminate the interview if they consider it in the best interest of the claimant, notwithstanding that the claimant may wish to continue.
  • The investigator must make all efforts to limit the length of the interview to four hours, unless the interviewer reasonably believes that the interview is close to completion and the claimant agrees to continue.
  • The investigator should ensure that questions are confined to issues relevant to the claim.
Ensure directives are implemented

WorkSafe requires the director of each registered investigation company, with service provider status, to ensure the directives above are understood and implemented.

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2.8.1.4 Circumstance (factual) investigations

Agents request circumstance investigations to determine the facts surrounding an injury for which a workers' compensation claim has been made. These investigations are also referred to as ‘factual investigations’.

Circumstance or factual investigations are often arranged to:

  • assist in the determination of liability
  • examine common law potential
  • examine recovery potential
  • investigate other aspects of the claim.
Liability

Factual investigations assist in the determination of liability and contribution.

Common law

The report could include the following:

  • analysing the alleged accident circumstances
  • obtaining relevant evidence, including (but not limited to):
  • witness statements
  • video of workplace and or work practices
  • photographs
  • obtaining employment documents about the worker, including (but not limited to):
  • the application for employment
  • wage and leave records
  • medical certificates of any nature
  • the accident injury report book
  • any safety investigation reports relevant to the alleged incident/s
  • group certificates for three financial years before the incident/s.
Recovery

Agents must always instruct PIs to have regard to potential third party recovery.

See: Negligent third parties

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2.8.1.5 Surveillance (activity) investigations

Surveillance investigations are a claims management tool used by Agents to discreetly determine a worker's activities and capabilities. These investigations are also referred to as ‘activity reviews'.

Surveillance should only be used if:

  • other less intrusive methods of investigation have been considered and have been assessed to be ineffective and inadequate or have been tried and found to be inconclusive and
  • there is adequate evidence to suggest the worker may be:
  • misrepresenting their disability
  • claiming excessive disabilities or
  • involved in the commission of a fraud.
Information privacy

In performing surveillance activities, Private Investigators are bound by the Information Privacy Principles set out in the Information Privacy Act 2000.

Prohibition on release to third parties

Agents must instruct Private Investigators not to forward information directly to another third party unless exceptional circumstances apply. Private Investigators must not divulge any information obtained in the course of their instructions to any other person or company without the express written permission of WorkSafe or its authorised representatives or unless that disclosure is required by law, as specified in the legislation.

See: Code of practice for private investigators

The Agent must restrict the contents of the material to relevant personnel on a ‘need to know’ basis.

See: Access to information & Privacy

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