Surveillance on mental injury claims
April 29, 2014
We are often asked on the potential benefits of conducting surveillance on mental injury claims, especially when the matter does not involve the claimant conducting employment related activities during the period of the claim.
This recent article in both the Melbourne Age and Sydney Morning Herald reports on the impact the surveillance in assessing the credibility of the claimant on a Comcare matter.
Private eyes to probe public servants' mental health claims
By Noel Towell April 25, 2014, The Sydney Morning Herald
Workers who say their jobs have left them mentally damaged are increasingly being placed under surveillance to test their claims.
The federal government’s workplace insurer, Comcare, which is slowly going broke under the cost of ‘'psychosocial injury'' compo cases, has warned it is going undercover to bust dodgy claims by public servants.
It follows the case of the National Australia Bank, which put private eyes on the trail of a former employee in Sydney who claimed workers’ compensation for a range of mental disorders allegedly caused by workplace bullying.
The case was keenly watched by insurers who have found if difficult if not impossible to disprove mental injuries, as opposed to physical fakers, who can be easily detected.
The claimant in the Sydney case, Hashem Azary, looked a mess when he gave his evidence to the Administrative Appeals Tribunal last month.
The former bank worker rocked in his seat, walked with a stoop, avoided eye contact and spoke in a child-like voice as he told the tribunal how bullying by his bosses at NAB caused his mental health problems.
The claimant’s wife told the tribunal that Mr Azary was “totally dependent” on her, that she had to help him shower, shave and dress, and how she had to put her husband’s food out in front of him and then coax him to eat.
He could drive, she said, but only in emergencies.
But private detectives hired by the bank had observed him clean-shaven and neatly dressed as he drove his son to childcare, took his wife and daughter to McDonald's, and then spent a few hours together in the city.
There was no rocking or stooping on the DVD shown to the tribunal.
A neuropsychologist also discredited Mr Azary's claims of mental illness.
''[Mr Azary] endorsed a high degree of exaggerated, unusual and extreme symptoms atypical of bona fide clients, but more typical of individuals asked to feign mental disorders in simulation research,'' Dr Thomas O’Neill told the tribunal.
Dr O'Neill said there was an 81.8 per cent chance Mr Azary was faking it.
Two other psychiatrists on the case, Thomas Newlyn and David Bell, backed away from their diagnoses after they saw the covertly filmed footage and read Dr O’Neill’s findings.
Another two psychiatrists saw the footage and did not alter their view that the former home loan salesman was sick, but they could not explain how he looked so healthy on the DVD and acted so unwell when he went to the doctor’s office or to the tribunal.
Everybody agreed it was curious that Mr Arazy spent four days in a psychiatric hospital, took anti-psychotic drugs and underwent electro-shock therapy but the tribunal held that none of those activities proved the claimant was sick.
Tribunal members Jill Toohey and Michael Couch found Mr Azary and his wife to be ''unreliable witnesses'', rejected their evidence and threw their case out.
The failed claim could be a watershed for bosses across the nation, particularly in the public sector, beset by a rising tide of mental health claims.
Comcare, which has been hit hardest by the rise in mental health claims, would not comment on the individual case but confirmed that it used covert surveillance in certain cases.