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Australia Racing NSW under investigation over handling of workers compensation claims and surveillance of injured workers

23:41  05 december  2021
23:41  05 december  2021 Source:   abc.net.au

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One of the nation's largest racing bodies is under investigation for what injured workers say is its aggressive and unfair handling of workers compensation claims.

For almost a decade, Joanne Howard has been followed and filmed.

Through the bushes at her home near Yass in southern New South Wales.

In the supermarket.

On a trip to the Tamworth Country Music Festival in 2016.

Even at her grandson's first birthday party in October last year.

"They have been following me around for years and it normally doesn't get to me," Ms Howard says.

"But what they did to me last year, that really rattled me.

"That was terrifying."

The person behind the camera is a private investigator, hired by an organisation that wields extraordinary power over Ms Howard's life: Racing NSW.

After being severely injured while working as stablehand in 2009, she has relied on the racing authority to pay her medical bills and workers compensation.

But she has had to fight — including at the NSW Personal Injury Commission — to get the support she says she needs.

"I just assumed they would fix me, and I'd go back to work," she says.

"But they'll spend hundreds of thousands of dollars on people chasing me and surveillance when they can spend $20,000 or $30,000 on a surgery that fixes me."

Ms Howard has spent her life in the racing industry, working for decades as a trackwork rider and stablehand.

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Most serious injuries in racing involve being struck by a horse or falling while riding, but her accident happened off the track.

She injured her neck and right shoulder when she fell backwards while using a whipper snipper on a grass embankment at a racing stable.

"The motor was behind my back, and it landed between my shoulders and my neck," she says.

"That did both my rotator cuffs and my neck."

Joanne Howard worked for decades in the racing industry before she was injured.

Photos: Supplied

After years of medical treatment, she was deemed incapable of returning to work in 2014 and receives weekly income replacement payments from Racing NSW.

But she has been forced to take Racing NSW to the Personal Injury Commission in the past to get it to pay for shoulder surgery and says getting the organisation to pay her medical bills is a constant battle.

Racing NSW insists its workers compensation fund always acts in the best interests of the injured and rejects claims from Ms Howard and others that they have been treated aggressively and unfairly.

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"Workers are treated with respect and the decisions made by the fund are fair and balanced, based on the credible factual evidence and in accordance with the NSW statutory workers compensation scheme and its guidelines," it says.

Surveillance is commonplace in the workers compensation industry, with strict safeguards.

Since 2012, Racing NSW has deployed private investigators at least five times to gather evidence to challenge Ms Howard's requests for additional support.

Racing NSW says the surveillance has "especially been warranted" in her case.

"On each occasion that surveillance has been conducted, Ms Howard has been observed undertaking activities that she has expressly stated she is unable to do," it says.

But ABC Investigations can reveal the NSW workers compensation regulator is investigating the racing authority over its use of surveillance.

The State Insurance Regulatory Authority (SIRA) says the investigation is part of a broader performance audit focusing on the organisation's compliance with workers compensation legislation and the industry's Standards of Practice.

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SIRA has the power to issue fines or cancel Racing NSW's workers compensation licence if it is found to have breached the legislation.

Racing NSW says it will cooperate with the audit.

"Racing NSW believes that SIRA will be fair and balanced in its approach, giving careful consideration to all of the evidence and submissions and without predetermining the matter," it says.

Even before announcing the audit, SIRA was already investigating Racing NSW for its failure to be transparent about its use of surveillance against Ms Howard during a week in October last year.

Racing NSW says it began the surveillance because it believed Ms Howard was exaggerating the extent of her incapacity in an application for almost $900,000 in funding for cleaning, gardening, cooking and personal care in September last year.

The application was based on an occupational therapist’s analysis of Ms Howard’s domestic support needs.

But Racing NSW says the footage recorded contradicts Ms Howard's claims in that application that her left hand is 'pretty much useless', that she is 'isolated from day to day social contact', does not drive and is unable to 'perform even the most routine domestic and self-care tasks'."

"The surveillance evidence paints … a picture of a person, seemingly unrestricted in any activities, repeatedly driving herself, performing onerous tasks which would be far beyond someone unable to 'perform even the most routine domestic and self-care tasks' and living a relatively normal life," Racing NSW says.

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But Ms Howard says the footage does not give a true representation of her injuries because she can often do household tasks, drive, do grocery shopping and operate her ride-on lawnmower and tractor after taking strong painkillers.

"I'm on Fentanyl and Oxynorm," she says.

"The Oxynorm lets me get shopping done and other things I need to do."

A mysterious man in a ute

She first noticed the private investigator parked on a road next to her home.

"He was in a ute. It had a ladder on top, so it looked like a work ute," she says.

"I know this guy is watching me. I've got binoculars, so I've had a look at him."

A few days later she spotted the same vehicle near a park in Yass where her family and friends had gathered to celebrate her grandson's birthday.

"I went over to my grandson and picked him up, thinking that if this guy is from Racing [NSW] he will go away because he has got what he wanted," she says.

Ms Howard's injuries mostly affect her shoulders, neck and back, making it difficult for her to lift heavy objects.

"But this guy didn't go away," she says.

Over four days, the private investigator followed her into a supermarket, as she visited family and repeatedly filmed her from the perimeter of her property.

Ms Howard became concerned that the investigator may have entered her property, which is against the rules governing surveillance.

She complained to the NSW Independent Review Office, which handles disputes between workers compensation providers and injured workers.

But IRO told her that Racing NSW denied it had put her under surveillance.

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"That scared me, straight away," she says.

Ms Howard says she became worried she was being followed by a potentially dangerous stranger.

"I can see him as well as he can see me. So why is he doing this if he is not from Racing [NSW]?" she says.

Racing NSW later admitted to hiring the private investigator, but Ms Howard says the experience left her feeling terrified.

"They intimidated me. They petrified me," she says.

SIRA's Standards of Practice say insurers must ensure the "scope and duration of surveillance is clearly articulated".

Surveillance must also be conducted in a way that "takes reasonable action to avoid video surveillance of children, and where possible does not show images of children in reports and recordings".

The recordings filmed at the birthday party show multiple children and the investigator's final report submitted to Racing NSW includes photographs of her grandson.

SIRA says it is now determining an "appropriate regulatory response" to Racing NSW's apparent breach of the Standards of Practice.

Racing NSW has defended filming the birthday party, saying it was "warranted given that Ms Howard's actions, including lifting children, would be impossible if her claims as to her disabilities were correct".

"SIRA has advised in conference that it has no issue with the actions of the surveillance agent," Racing NSW says.

Racing NSW has also defended its decision not to disclose the surveillance to IRO.

"IRO made enquiries of the General Manager of the Fund on 6 October, 2020, and 7 October, 2020," it says.

"The General Manager advised IRO on 7 October, 2020, that Ms Howard 'is not currently under surveillance'. Which was correct as the surveillance had ceased by 4 October, 2020."

"The decision not to provide details of the surveillance that had ceased by the time of the response on 7 October, 2020, must be viewed in the context of the significantly incriminating surveillance evidence that was obtained in the period."

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It says Ms Howard abandoned the application for domestic assistance shortly after the surveillance concluded, but Racing NSW still pays for her cleaning and lawn mowing as part of an agreement reached without admission of liability in the NSW Personal Injury Commission in September.

It has also just approved surgery on her left shoulder, and continues to pay her.

Racing NSW takes 'tougher attitude' to injury claims, former watchdog says

Injured racing industry workers and their lawyers believe Racing NSW's unique workers compensation scheme is driving unfair and aggressive behaviour.

It is the only racing authority in Australia that manages its own workers compensation scheme through an arrangement known as a specialised insurer licence.

Other racing authorities use their states' government-run workers compensation schemes.

Racing NSW says managing claims internally allows it to provide better care to injured workers.

But Kim Garling, the former head of the Independent Review Office, says Racing NSW has a record of taking a "tougher attitude" with injured workers compared with other organisations that manage their own insurance.

"I think Racing NSW could do better," he says.

He says IRO received a disproportionately high number of complaints about Racing NSW while he oversaw the agency between 2012 and 2019.

"Racing NSW were in a group of self-insurers who would fight more cases than a lot of other self-insurers," he says.

The IRO also funds legal action by injured workers who disagree with decisions by their insurer.

The latest figures show the agency provided legal funding to 47 injured racing workers in the 2020-21 financial year.

"That means [going] to the Personal Injury Commission for determination. That's an expensive exercise and it's a daunting exercise for the injured worker," he says.

In its statement, Racing NSW says the number of complaints reflect the size of the industry in NSW.

"The NSW Thoroughbred Racing Industry is an extremely large industry, employing tens of thousands of workers who receive coverage under the fund," it says.

"It is only natural that there will be more complaints [than] a smaller industry, with substantially less workers, in the hundreds not tens of thousands."

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'I think they're waiting for me to give up'

Stephanie Oberg says she is still recovering from the stress of her legal battle with Racing NSW earlier this year.

She has returned home to Sweden after spending more than a decade as a trackwork rider in NSW.

"It was the perfect job for me because I love horses so much," she says.

But her dream of working in the industry for the rest of her life came to an end when she suffered three serious injuries in the space of 18 months.

In the final accident in September last year, she fractured her spine in two places after falling from a galloping horse during early morning trackwork at Warwick Farm racecourse in Western Sydney.

"I sat up and first thing I thought was, 'not again'. And I started crying straight way," she says.

"It is my passion, and I just don't know what to do if I can't ride."

Racing NSW accepted liability for her injuries and began paying her medical bills and workers compensation.

After three months of rest and treatment, she managed to return to the stables to do light work but was expecting to go back on weekly payments if the pain of working became unbearable.

Around that time, she decided to move home to Sweden to be closer to her family.

But when she applied to continue receiving her payments and medical expenses overseas, she discovered Racing NSW had already cut off her income support.

It argued that because she had returned to work, she was no longer entitled to weekly income replacement payments.

"I said, 'I'm not even close to coming back to my pre-injury duties'," she says.

"You can't just take someone off workers compensation like that, like they did without letting me know."

When Ms Oberg launched proceedings in the Personal Injury Commission, Racing NSW hired a private investigator to conduct surveillance on her.

"I can understand that they want to investigate and see that someone's injured … but I feel like that is an insult," she says.

"They are taking videos of me walking saying I'm walking fine. I'm sorry but walking and riding a racehorse are two completely different things."

In its statement Racing NSW said the surveillance was prompted by a Facebook post showing Ms Oberg "engaging in strenuous physical activity".

Ms Oberg won her case in the Personal Injury Commission in July this year and Racing NSW was forced to make back payments for her final few weeks in Australia.

Her case has also prompted the regulator SIRA to begin a separate investigation into Racing NSW's conduct.

The commission member who adjudicated the matter accused Racing NSW of fighting the claim with "regrettable ferocity" and of a "flagrant breach" of the commission's rules by failing to hand over documents to crucial to Ms Oberg's case.

In October this year, the commission referred Racing NSW to SIRA over its conduct in the matter.

"SIRA will now consider this matter as part of its supervision of Racing NSW," the regulator said in a statement.

Racing NSW denies its actions constitute a breach of the commission's rules.

"The notice to produce was not validly issued or enforced under the applicable rules," it says.

"The position taken by the fund was in accordance with the applicable legal principles and was after consideration of the advice provided by the Fund's external solicitors."

Ms Oberg is now planning to apply for a permanent incapacity determination so she can resume income replacement payments from Racing NSW.

But she is dreading having to deal with an organisation that she believes shows little care for its workers – particularly trackwork riders and stablehands.

"I think they're waiting for me to give up," she says.

"But I'm not giving up."

Figures from the latest Racing NSW annual report show trackwork riders and stablehands like Ms Howard and Ms Oberg accounted for about 70 per cent of the 533 personal injury claims lodged last financial year.

'They should show some respect'

Anette Myrvang, another seriously injured trackwork rider, says there is little public awareness of the dangers facing the lowest-paid workers in the racing industry.

"They give their lives to this industry, and it's a really high-risk profession," she says.

"A lot of people work 13 days on and have two days off. They wake up three or four o'clock in the morning."

Ms Myrvang has followed a similar path to Ms Oberg, arriving in Australia in 2009 as a backpacker and eventually turning her love of horses into a trackwork riding career.

But a series of accidents since 2018 left her with injuries that mean she can no longer ride horses.

Racing NSW was covering her medical expenses and paying income support until July this year, when it sent her to a medical specialist who concluded that her condition was the result of pre-existing osteoarthritis.

That is despite Ms Myrvang never having been diagnosed with the condition in her life.

"It was shocking," she says.

"They said they were going to cease my payments in two weeks."

She is now paying for her own medical treatment but is unemployed and is struggling to afford the cost of expensive specialists.

"I can't actually hold a job because I can't sit for too long, I can't stand for too long and I can't walk for too long," she says.

Racing NSW has told Ms Myrvang she can return to trackwork riding, but her treating doctors disagree.

They say her condition is a direct result of her injuries and unless she shows signs of recovery, she may need spinal surgery.

Ms Myrvang's lawyers have written to Racing NSW, arguing that the law requires it to provide evidence of a pre-existing condition.

They have not received a reply.

She is now preparing to take her case to the Personal Injuries Commission.

In its statement, Racing NSW says the medical examiner's decision is adequate proof that Ms Myrvang has a pre-existing condition.

"Radiological investigations Ms Myrvang underwent support this diagnosis," it says.

"The fund … is required to review the factual evidence provided and make ongoing decisions based on that evidence."

"None of those decisions are made with an intention to cause financial hardship or distress."

Ms Myrvang is now studying anthropology at university and hoping to find a new career.

But she believes if Racing NSW had provided her with more support, she could have found a way to stay in the racing industry.

"I have worked in this industry for 10 years, I would expect better," she says.

"They should show some respect and support their workers."

Watch this story tonight on 7.30 on ABC TV and iview.

[Unfair Work form embed]

Credits:

Reporting: and

Photography: Greg Nelson, Matthew Gormly, David Maguire, Jerry Rickard, Alexandra Stares

Digital production:

F1 Pro Championship: Sim-Racing series before heart-stopping .
Who wheel-to-wheel racing tracks for close racing action and decisions in the last round, will feel completely in eSports F1. Almost every race offers exciting scenes and unforeseen race developments - such as the last event three impressively demonstrated. © F1 eSports object of desire - F1 eSport series nearing completion.

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