Online surveillance of injured workers ‘relatively common’: insurer

A Fire and Rescue NSW policy of conducting surveillance on workers with psychological injuries resulted in its insurer contracting a private investigations firm that trawled through the social media accounts of one worker’s 15-year-old daughter, an icare review of the case found.

The scathing customer advocate report on the treatment of Matthew U’Brien, obtained by the Herald, concluded there was “no rationale” for the surveillance despite a senior manager at Fire and Rescue’s insurer, EML, describing the so-called “desktop review” of his online presence as a “relatively common report”, which was “seen as having no risk to the worker”.

Surveillance of injured workers came under scrutiny on Tuesday when a parliamentary inquiry into the government’s workers’ compensation reforms heard a private investigator had obtained evidence about U’Brien from his teenage daughter’s social media profiles.

Completed by icare customer advocate Melanie Howard-McDonald in July, the 22-page report found broad issues with how the U’Briens had been treated since Matthew made a claim four years earlier.

After a nearly year-long probe, Howard-McDonald found EML approved desktop surveillance of U’Brien in February 2023 “on the basis that it was FRNSW policy to conduct surveillance on injured workers” with significant psychological injuries, considered a whole of person impairment level above 15 per cent.

“I have reviewed the instructing letter and have not identified any rationale for undertaking the surveillance,” she wrote.

“In addition to no rationale being provided for the surveillance, concerningly, the instructing letter references that Mr U’Brien is married with two children aged 13 and 15.

“Whatever the reason for including the reference to Mr U’Brien’s wife and children, it is evident the investigator viewed the surveillance instructions as including Mrs U’Brien given it proceeded to review her social media accounts.”

Joined by his daughter Lillian and wife Sarah, U’Brien told the inquiry he had learnt the private investigations company had been hired through a heavily redacted receipt buried among thousands of pages of EML documents he had obtained following a freedom of information request.

U’Brien spent 27 years working for NSW Police, Fire and Rescue NSW and the NSW Resources Regulator. He lodged a claim against Fire and Rescue in 2021 because of post-traumatic stress disorder he developed through his time in the public service.

After the U’Briens discovered the existence of the surveillance nine months after it had started, a senior manager for EML told Sarah U’Brien the desktop report was “relatively common” and was “non-intrusive and … is seen as having no risk to the worker”, according to icare’s report.

Despite all medical reports saying he had no capacity for work, EML took the position U’Brien was being “dishonest” and that he had developed a “victim story”, the report found. This was based on his participation in the Heart2Heart Charity Walk, hosting of a podcast series, and posting on social media, including posts by his daughter.

EML did not respond to repeated requests for comment.

Howard-McDonald also found there was an inadequate effort to limit the identification of U’Brien’s daughters, saying that, besides having their faces blocked out, the desktop report had “not been restricted or redacted in any way”.

She found “multiple examples” of FRNSW employees “directing … the management of the claims”, noting the EML case manager “either relied heavily on directions from FRNSW in undertaking management of the claim, or … performed their role at the direction of, and as instructed by, FRNSW”.

“The interactions between EML … and FRNSW went beyond the consultation and co-operation expected of them,” she wrote, finding the co-operation between EML and FRNSW came “at the expense of Mr U’Brien’s mental health and wellbeing, as well as his financial circumstances”.

A FRNSW spokesman did not respond directly to questions about whether FRNSW was aware that private investigations companies engaged by their insurer had monitored teenagers’ social media as part of desktop reviews, or whether the agency had a policy of conducting surveillance on injured workers.

“Fire and Rescue NSW does not have, nor has it ever had, a policy to contract surveillance companies,” he said.

“We are committed to transparency, ethical conduct, and the protection of individual privacy and expect any claim for workers’ compensation to be processed through icare in accordance with the State Insurance Regulatory Authority guidelines and standards of practice.”

Workplace Health and Safety Minister Sophie Cotsis last month told budget estimates she was “very concerned” by reports that injured workers’ families had been included in desktop surveillance.

“Let me make this clear: Families and children should be off limits. It is as simple as that,” she said.

Cotsis told the Herald she and icare had apologised to the U’Briens, and EML and that other claims service providers had been directed not to undertake desktop surveillance of workers’ family members.

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