Surveillance is one of the most important weapons in your workers’ compensation arsenal, but it is important to know when and how to properly use it to build a fraud claim, understand the employee’s true limitations, etc. Some adjusters or claims managers may order surveillance of a claimant too quickly or without properly tailoring the surveillance around the facts of the workers’ compensation claim. It is also important to remember that just because you have surveillance of a claimant doing certain activity, this in and of itself does not prove fraud. We have to show that the claimant has intentionally misrepresented their current medical complaints or limitations, and the surveillance supports the misrepresentation.
In order to develop your fraud claim using surveillance, you need evidence of the claimant performing an activity that they have told their medical providers, or your attorneys in their deposition, they cannot perform. For example, if the claimant has informed their treating physician that they are practically bed-ridden and cannot leave the house or walk more than a few steps, this is the time to attempt surveillance in an attempt obtain footage of the claimant possibly working in their yard or doing something away from their home. It is important to first see what the medical records show the claimant is saying about his limitations because surveillance is best used in juxtaposition with claimant’s description and representation of his or her physical capacities.
I would recommend a couple of things in order to have better luck with surveillance. First, it may be prudent to order surveillance on the same day that the claimant has an appointment with their treating physician, and possibly the day before and the day after the appointment. This will allow us to compare what the claimant told their doctor on, or near, the same day that surveillance footage is obtained. If the claimant tells the doctor that they can only walk with the use of a cane or walker, and then surveillance shows them placing their cane in the back of the truck in the parking lot of the doctor’s office and walking around with no cane thereafter, that would go a long way towards establishing a fraud claim. Secondly, with regard to Second Medical Opinions (SMO’s), tailor your questions to your SMO doctor to specifically ask them to obtain information from the claimant as to their day-to-day activities. The SMO physician should not be broad, but rather, specific with these questions. Examples include: “Can you mow your grass?”, “Can you drive?” and “What is the heaviest tool or object around your house that you can lift?” The responses can be compared to surveillance you already have or against surveillance you obtain in the future.
But remember, surveillance cuts both ways. If the claimant is observed walking with an impaired gait or using a cane, being driven around town, rather than driving on their own, you now have video evidence supporting that the claimant lives with those restrictions, at least during the time they are on video. So, if the claimant tells his doctors that they cannot drive, and you have video of the claimant being driven around, then you are going to have a hard time arguing successfully that the claimant is able to drive.
In addition to obtaining surveillance, you must also protect it. In Louisiana, we are not obligated to disclose the existence of surveillance until after the claimant is deposed. However, if that surveillance comes into the possession of a third party, then it is often argued that those protections have been waived. Therefore, do not ever disclose to the claimant or his attorney that you have surveillance. Also, do not send that surveillance to the SMO or the treating physician, because if you do so, that video now becomes part of the doctor’s record and is then discoverable even before the claimant’s deposition testimony is held.
Surveillance is not simply a box that you have to check on a list of things that you must do in a compensation claim. Surveillance should be used tactically and with a specific purpose in mind. The surveillance should be used either to challenge the employee’s claim to restrictions or limitations, or used to form a baseline for your understanding of the employee’s actual limitations. Surveillance is more successful if you use it as one of your tools in your defense toolbox and not simply as a step in the process of defending against a claim.
If you reach a point in the case, and you are not sure if it is an appropriate time to perform surveillance, feel free to give us a call.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.