08/19/2023
Surveillance Not Uncommon in Workers’ Compensation Cases
Private investigators and hidden camera surveillance might seem like the stuff of suspenseful TV shows.
But getting “caught” on camera can be a concern in a workers’ compensation case.
In fact, it’s much more common than you might think. A worker gets hurt at work and sees a doctor. The doctor gives the worker restrictions and says, “These are the things you are not supposed to do or else you could hurt yourself. Don’t do these things and you will get better.”
The worker goes about their life, and their case progresses towards a mediation.
Then the worker and their attorney get to mediation and the attorney for the employer and insurance company pulls up a video that the insurance company claims to show the employee doing things that they were not supposed to do. The case is now in trouble.
In workers’ compensation, we call this surveillance.
Insurance companies routinely hire private investigators to video a hurt worker in the hopes that they will “catch” them doing something that is inconsistent with the restrictions the doctors set.
Even if you think you’re aware of your surroundings and that you would know if you were being watched, that’s often not the case.
A good private investigator is invisible and if they do their job well they stay that way.
I’ve seen video taken from a private investigator in a car, in a van, and even posing as a customer in a restaurant. And in this day in age where everyone has a mobile phone with a built-in video camera, you’re probably not even aware of how often in a day you could potentially be on camera. (You should also be careful about what you share on social media because those posts could be used against you, as well.)
Clients have asked me, “Is this legal? He filmed me at MY house and when I was in my yard!”
The answer is yes, it is legal.
It’s legal for anyone to videotape you in your yard, or anywhere else in public view. There is no expectation of privacy when you are in view of the public.
Clients have also said to me, “But I wasn’t doing anything outside my restrictions and the investigator’s report says that I was lifting or carrying more than my restrictions without any apparent difficulty. How would they know that?”
It is very easy for an investigator who was hired by an insurance company to say that you “appear” to be doing something outside your restrictions, or that you were lifting, carrying or walking without any apparent difficulty. We see those types of phrases in investigators’ reports all the time.
While we can always argue that the investigator is biased or just plain wrong, it’s much easier if we simply don’t have to make these arguments.
So, what does this mean to your case as an injured worker?
Does it mean you can’t live your life or that you should be paranoid about everyone around you? Draw the curtains at home and never go out? No.
It means you should be mindful of your surroundings and made sure you are following your doctor’s restrictions all the time regardless of where you are.
That means that if you have a lifting restriction of 20 pounds that you should not be trying to carry in that 40-pound bag of dog food from the store.
If you aren’t supposed to be standing more than 15 minutes at a time then at 16 minutes you should be finding a chair at the church luncheon.
Following your doctor’s restrictions all the time — both inside and outside of work — will not only help keep your worker’s compensation case on track, it will also help you heal and get better faster.
If you think you might be under surveillance on your workers’ compensation claim and you would like help, please contact us as soon as possible.
