Workers' Comp Surveillance

This is the first in a series of articles by Attorney Charles Casartello, Jr. about surveillance in the Workers’ Compensation discovery process.

Dealing with workers compensation can be a heavyweight fight.

Let's put one thing on the table. Workers compensation can be, and often is, an adversarial process. It’s a fight. Once a workers compensation claim is in process, the insurance company has several tools available to investigate (or scrutinize) an employee’s account of important (or unimportant) facts.

Insurance companies perform investigations routinely. Investigations are one-sided.

Surveillance is very important tool commonly used by an insurance company, particularly in workers compensation cases. Surveillance is part of the overall process of "investigation" which can include everything from witness interview, document collection and accident scene inspection.  

Surveillance is creepy but can be damaging.

Most often, surveillance is done by a private investigator retained by the insurance company or an employer. Private investigators usually have excellent resources in computer-accessible databases, photography and videotape technology and time. A surveillance investigation is deployed as part of an "activity check". The purpose of an activity check is to determine whether an injured worker is engaged in activity which is inconsistent with a claim of disability.  

It is common for the insurer to use surveillance to allege that employee has capability to do some work as is demonstrated by activity captured on videotape. Some old philosopher said that a picture is worth 1000 words. It is certain that videotape images can be impactful. Sometimes a picture is difficult to explain. Oftentimes, a clip of videotape needs to be placed in a real context.

What does the investigator look for?

Typically, a private investigator will be given some details about the workers compensation claimant such as name, address, age and injury. The private investigator can use a variety of Internet resources to find out about a claimant’s motor vehicle, real estate, business interests or social involvement. Social media provides a treasure trove of information, including photographs, about people. Much information in social media is self published. So a private investigator uses all of this information to find out what a claimant is up to. Then the private investigator will set up a videotape camera in a location or in a vehicle to photograph an injured worker as she goes about daily business. The investigator will look for (and photograph) any physical activity that contradicts the employee’s account of what she can or cannot do physically.  

If the videotape imagery shows the employee doing something that is inconsistent with medical restrictions, the employee's own subjective complaints or information in a medical record about the employee’s physical capability, that can be a big problem.

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